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RUBEN ELESCANO, Appellant, v. EIGHTH-19TH COMPANY, LLC, Defendant and Third-Party Plaintiff. A T CONSTRUCTION CORP., Third-Party Defendant-Respondent.

Plaintiff suffered a ruptured rotator cuff that required physical therapy three times a week for about a year, then surgery, then six more months of physical therapy, and then home exercise of 30 to 40 minutes a day continuing through the trial. Plaintiff's treating physician stated that the injury will cause plaintiff permanent and worsening chronic pain; defendant's expert acknowledged that plaintiff has a permanent partial disability with intermittent symptoms that can be painful with extreme motions. Under the circumstances, the award for future pain and suffering deviates materially from what is reasonable compensation under the circumstances ( cf. Murakami v. Machinist, 3 AD3d 336), and we accordingly modify as above indicated.

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ELESCANO v. EIGHTH-19TH COMPANY
(Apr 21, 2005)