Majority
p. 465Pearl Meeks, Appellant, v City of New York, Respondent. (And a Third-Party Action.) [597 NYS2d 363]
Judgment, Supreme Court, New York County (Seymour Schwartz, J.), entered March 4, 1992, which, upon a jury verdict, found defendant to be 90% negligent and adjudged that plaintiff recover $51,283.84 from defendant, unanimously affirmed, without costs.
The testimony regarding post traumatic arthritis was properly precluded by the Trial Judge. Not only did plaintiff fail to include this condition in her bill of particulars (see, Ciriello v
p. 466
Virgues, 156 AD2d 417 , 418-419), but the doctor who was to testify about said condition noted that in cases concerning injuries similar to plaintiffs, there was only a 35 to 45 per cent chance that degenerative arthritis would develop in the ankle over a 10 to 15 year period, and plaintiff had not developed any such condition eight years after the injury, and thus, the condition would not fall within the concept of natural sequelae (cf., Grey v United Leasing, 91 AD2d 932 , 934).
While the award for pain and suffering falls within the lower end of the scale for comparable injuries, we find no basis for interfering with the jury’s determination (see, CPLR 5501 [c]). Concur—Carro, J. P., Milonas, Ellerin and Kassal, JJ.
Cases cited
- Ciriello v. Virgues 156 AD2d 417 at 418-419 p. 466
- Grey v. United Leasing Inc. 91 AD2d 932 at 934 p. 466