Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in submitting the issue of plaintiff's contributory negligence to the jury in this action brought pursuant to the Federal Employer's Liability Act. The theory of contributory negligence presented was neither pled nor proven at trial. Thus, plaintiff is entitled to the full amount of damages awarded by the jury without any offset for his contributory negligence.
The jury's failure to compensate plaintiff for future pain and suffering is not against the weight of the evidence. The record discloses that in the seven years since the cancerous tumor on plaintiff's bladder was diagnosed, there has been no recurrence of the condition. The jury also heard expert testimony that the chance of such a tumor recurring is greatly reduced after an individual has been cancer-free for that long. Therefore, it cannot be said that the jury's determination was not based on a fair interpretation of the evidence (see, Crumb v. Fallon, 156 A.D.2d 949; Kuncio v. Millard Fillmore Hosp., 117 A.D.2d 975, lv denied 68 N.Y.2d 608).