The 65-year-old plaintiff suffered a non-displaced fracture of the calcaneus bone and a tear of the anterior ligament in the lateral aspect of the ankle, which, according to his expert, resulted in progressive degenerative changes and a permanent restriction of motion thereby limiting his ability to walk on some surfaces. Defendants' expert confirmed that plaintiff's loss of motion in his foot and ankle, rated at 50%, is permanent. Given these facts, the jury's future pain and suffering award of $36,500 over 14.6 years, which translates to $2500 per year, deviates materially from what is reasonable compensation. However, inasmuch as the calcaneus fracture has healed and plaintiff no longer requires crutches or takes medication for the heel pain, and in view of the equivocal opinion of plaintiff's treating physician as to whether he will require future surgical intervention, the trial court's $116,300 additur, which we allocate entirely to future pain and suffering based on plaintiff's motion to set aside the verdict, for a total future pain and suffering award of $152,800, or about $10,000 per year, is excessive. We modify to reduce the additur by $50,000, for a total future pain and suffering award of $102,800, or about $7,000 per year (CPLR 5501[c]). A fair interpretation of the evidence supports the jury's award for past lost earnings.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.