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JOSEPH SANFILIPPO, PLAINTIFF-APPELLANT, v. CITY OF NEW YORK, DEFENDANT-RESPONDENT.

Defendant correctly concedes that the failure to award past medical expenses and past pain and suffering is inconsistent with a finding of liability against the defendant and with an award for approximately 9½ months of past lost earnings (see, Schaffer v. RCP Assocs., 232 A.D.2d 286; see generally, Pares v. LaPrade, 266 A.D.2d 852, 697 N.Y.S.2d 413; Kennett v. Piotrowski, 234 A.D.2d 983). Additionally, the parties had stipulated to the fair and reasonable value of past medical expenses in the amount of $55,585.69 and that stipulation should be enforced (see, Parsons v. City of New York, 195 A.D.2d 282). The jury verdict as to past lost earnings and future damages should, however, be affirmed since, in light of the conflicting evidence as to the severity and permanency of plaintiff's injury, including, inter alia, the evidence of plaintiff's own expert, whose notes indicated that shortly before trial plaintiff's reflexes were intact, his strength was good and there was no sign of ulnar neuropathy, as well as X-rays that showed no herniation to plaintiff's discs, we cannot say that the jury verdict with regard to those components of plaintiff's damages could not have been reached on any fair interpretation of the evidence (see, Grassi v. Urlich, 87 N.Y.2d 954, 956; Lolik v. Big V Supermarket, 86 N.Y.2d 744; Kelley v. Balasco, 226 A.D.2d 880).

We have considered plaintiff's remaining contentions and find them to be unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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SANFILIPPO v. CITY OF NEW YORK
(May 18, 2000)