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Chisholm v. Madison Square Garden Center, Inc.

289 A.D.2d 168 Court N.Y. App. Div. Decision date 2001-12-27 English

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p. 168
Peter Chisholm, an Infant, by Enid Bagalio, His Natural Mother, et al., Respondents, v Madison Square Garden Center, Inc., et al., Appellants.
[735 NYS2d 380]

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered May 1, 2001, which granted plaintiff’s motion to set aside the awards for past and future pain and suffering to the extent of directing a new trial on damages unless defendants stipulated to increase the award for past pain and suffering from $25,000 to $250,000 and for future pain and suffering from $0 to $150,000, unanimously affirmed, without costs.

The awards for past and future pain and suffering were properly set aside upon a record showing that plaintiff suffered a comminuted fracture of the right elbow when he was 15 years old, which required two surgical procedures under general anesthesia over a four-year period, and involves continuing

p. 169
limitation of motion and a likelihood of, inter alia, arthritis in the elbow at a relatively young age (cf., Roshwalb v Regency Mar. Corp., 182 AD2d 401 , lv denied 80 NY2d 756 ; Martinez v Gouverneur Gardens Hous. Corp., 184 AD2d 264 , 267, lv denied 80 NY2d 759 ). Defendants’ argument that the verdict was a compromise is improperly raised for the first time on appeal (cf., Gribbon v Missionary Sisters of Sacred Heart, 244 AD2d 185 ), and we decline to review it. In any event, the claim lacks merit since it does not appear that liability was a close issue at trial (see, Figliomeni v Board of Educ., 38 NY2d 178 , 182). Concur — Rosenberger, J. P., Nardelli, Ellerin and Saxe, JJ.

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