MACHADO v. CITY OF NEW YORK

ORDERED that the order is affirmed, with costs.

On August 27, 1996, the 23-year-old plaintiff, a construction worker employed by the third-party defendant Techno Construction Company, was working in an excavation ditch located on Willowbrook Road in Richmond County when a trench wall collapsed on him, causing him to be completely buried and trapped under debris. He obtained summary judgment against the defendant City of New York on the issue of liability pursuant to Labor Law § 240.

As a result of the accident, the plaintiff sustained a severe spinal fracture and a complete destruction of his left knee mechanism, requiring him to undergo six surgeries. He also suffered numerous other complications during the course of his treatment including errant bone growth, infection at the graft site, and serious intestinal complications that caused excruciating pain. He was hospitalized for a month, was discharged to a rehabilitation center where he remained for two weeks, and then attended an outpatient intensive regimen of physical therapy for several years. He lost 60 pounds, could not engage in sexual activity, play sports, socialize, date, or work in a non-sedentary job. He was left with permanent disabilities and was at greater risk for sustaining degenerative changes in his spine and knee earlier in life. Therefore, the Supreme Court properly determined that the jury's award for past and future pain and suffering deviated materially from what would be reasonable compensation (see CPLR 5501[c]; Barlatier v. Rollins Leasing Corp., 292 A.D.2d 480, 481; cf. Pellegrino v. Felici, 278 A.D.2d 212, 213), and properly directed a new trial on the issue of damages as to those causes unless the City stipulated to an increase in the award for past pain and suffering from the sum of $500,000 to the sum of $1,500,000, and an increase in the award for future pain and suffering from the sum of $350,000 to the sum of $500,000 (see e.g. Kirby v. Turner Constr. Co., 286 A.D.2d 618, 619; Young Tops Mkts., 283 A.D.2d 923, 924-925; Figueroa v. Center Assocs., 283 A.D.2d 324, 325).

FLORIO, J.P., S. MILLER, CRANE and RIVERA, JJ., concur.