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ERNST LURKER et al., Appellants, v. ANNETTE PELLIKAAN et al., Respondents.

Plaintiff's right foot was run over by an SUV, causing him to sustain a Lisfranc fracture involving comminuted fractures of the second and third metatarsal, a widening of the space between the first and second metatarsal, and displacement of the first, third and fourth metatarsals. Surgery, which involved a three-day hospitalization and a day visit six months later to remove the hardware, was successful. Plaintiff was not ambulatory the first two months after the accident, experienced much pain the first six weeks after the surgery, during which time he underwent physical therapy two or three times a week, but was ambulating without aid within six months. At the time of trial less than two years after the accident, the 67-year-old plaintiff was walking without a limp, and while he testified to continued pain and resulting loss of enjoyment of life, the only objective sequela of the injury is some numbness and neuropathy of the pad underneath the big toe, some enlargement of the foot due to calcification around the healed bone, and some decreased range of motion in the toes. Under the circumstances, the damage awards, as reduced by the trial court, deviate materially from what is reasonable compensation to the extent indicated (CPLR 5501 [c]).

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LURKER v. PELLIKAAN
(Nov 22, 2005)