Cochetti v. Gralow

• Decision Date: 29 April 1993
• Citation: 597 N.Y.S.2d 234,192 A.D.2d 974
• Parties: Georgianna COCHETTI, Respondent, v. Edward GRALOW et al., Doing Business as Vinewood Laundromat, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 234

597 N.Y.S.2d 234

192 A.D.2d 974

Georgianna COCHETTI, Respondent, v. Edward GRALOW et al., Doing Business as Vinewood Laundromat Appellants.

Supreme Court, Appellate Division Third Department.

April 29, 1993.

Kris T. Jackstadt (Edward B. Downey, of counsel), Albany, for appellants.

De Lorenzo, Gordon, Pasquariello, Weiskopf and Harding, P.C. (Richard Weiskopf, of counsel), Schenectady, for respondent.

Before WEISS, P.J., and LEVINE, MAHONEY, CASEY and HARVEY, JJ.

HARVEY, Justice.

Appeal from an order of the Supreme Court (Ryan Jr., J.), entered February 10, 1992 in Schenectady County, which, inter alia, granted plaintiff's motion to set aside the verdict with respect to the amount of her future damages and ordered a new trial on that issue.

On February 13, 1985, plaintiff sustained injuries to her left knee when she slipped and fell on ice on defendants' property in the City of Schenectady, Schenectady County. Plaintiff sought emergency treatment as a result of the fall and she returned to work the next week. However, after plaintiff continued to experience pain and swelling just below her left kneecap, her family physician referred her to John Dolan, an orthopedic surgeon who had treated plaintiff in 1984 for inflammation of the same knee. Dolan determined that the swelling under plaintiff's kneecap was due to a lump or cyst that he opined developed because of the February 1985 fall. When the lump continued to grow, Dolan performed surgery to excise it. In October 1985 the lump began to recur but Dolan decided in December 1985 to leave it alone and to check it several months later. According to plaintiff, her knee became worse between 1986 and 1987 but she did not see Dolan because his previous bills were unpaid. Thereafter, on February 5, 1987, plaintiff was struck on her left side by an automobile. Dolan examined plaintiff after the accident and noticed no contusions or fluid on the knee or other significant problems. Nevertheless, because the lump in her left knee had grown larger Dolan performed an arthroscopic procedure to remove it. At that time Dolan discovered a partial tear of the cartilage in the left knee which was not evident in the first surgery and which Dolan opined plaintiff suffered as a result of the car accident. He further opined that the second hospitalization resulted half from the car accident and half from the slip and fall. Dolan stated that, as a result of the fall, plaintiff had "traumatic exostosis of the bone" and "chondromalacia of the patella". Dolan considered plaintiff's injury a mild permanent disability which might require future surgery.

Thereafter, in May 1987, plaintiff commenced this action against defendants alleging that their negligent maintenance of their property caused her problems with her knee. Following a trial, the jury returned a verdict finding defendants 60% liable and plaintiff 40% liable for the slip and fall. The jury awarded plaintiff $10,000 for pain and suffering, $10,000 for medical expenses and $16,000 for lost earnings, all of which were from the date of the fall to the date of the verdict. Plaintiff was awarded nothing for future damages and then moved pursuant to CPLR 4404(a) to set aside the verdict in...