SUPREME COURT: COUNTY OF CHAUTAUQUA

_____________________________________________

MICHAEL A. KULPA;

AND BRENDA KULPA

Plaintiffs,

vs Index No. H-03487

GBP INDUSTRIES, INC. D/B/A

CHEMICAL PROCESS SYSTEMS/SERVICE

Defendants.

_____________________________________________

GBP INDUSTRIES, INC. D/B/A

CHEMICAL PROCESS SYSTEMS/SERVICE

Third-Party Plaintiff

vs Index No. H-03487

A. W. FARRELL & SON, INC.

Third-Party Defendant

_____________________________________________

MISERENDINO, CELNIKER,

SEEGERT, & ESTOFF, P.C.

(Jonathan D. Estoff, Esq.

of Counsel) for Plaintiff

HURWITZ & FINE, P.C.

(Dan D. Kohane, Esq.

of Counsel) for Defendant

WILLIAM A. LONG, ESQ.

Attorney for Chemical Process

ROBERT M. LIPPMAN, ESQ.

Attorney for A.W. Farrell

DECISION AND ORDER

March 5 , 1996

GERACE, J.

Plaintiff moves to set aside the verdict on grounds

that the amounts awarded to him deviated materially from

what would be reasonable compensation for damages from the

result of a fall from a roof.

Plaintiff suffered fractures of four vertabra in his

lower back and will not be able to return to work as a

roofer.

The jury rendered a verdict as follows:

To the date of the verdict:

Medical.... $21,324.

Loss of earnings.... $132,430.

Pain & Suffering.... $12,000.

Future expenses:

Medical.... $2,000.

Loss of earnings.... $24,377.

Pain & suffering.... $5.000.

Total $197,131.

Defendant claims that a possible interpretation of the

evidence is that the jury felt that plaintiff's injuries

were not causally related to the accident. This is refuted

by the verdict for damages to the date of verdict. If the

jury did not believe the injuries were causally related,

they would not have awarded the amount they did.

The standard of review to overturn a verdict is that

it must "deviate materially from what would be reasonable

compensation." See PruntyvYMCAofLockport,Inc., 206

AD2d 911.

The Court finds that the verdict was contrary to the

weight of the credible evidence at trial and constitutes a

material deviation from reasonable compensation.

Plaintiff's earnings as a roofer had he not been injured

was undisputed.

Although some question was raised concerning his

future earnings with the National Guard, there was no

dispute by defendant as to the amount defendant would have

earned had he remained with the Guard.

Defendant's own vocation rehabilitation expert

conceded plaintiff's disability and testified to his lower

earning capacity. Even using this expert's own figures,

the jury award is contrary to the evidence presented.

Furthermore, the jury found that plaintiff would

continue to experience pain and suffering for forty years.

Testimony was unrebutted that he would have future medical

expenses greater than $2,000.

This verdict deviates materially.

The motion for a new trial is granted unless the

defendant agrees to an award of damages as follows:

Pain and suffering to date of trial $12,000.

Loss of earnings to date of trial $132,430.

Medical to date of trial 21,324.

Future Loss of Earnings 200,000.

Future medical 5,000.

Pain and suffering 40,000.

Total Damages $410,754.

The signing, filing, and mailing of a copy by the

Court of this Decision and Order to all Counsel shall not

constitute notice of entry required by CPLR 2220. Counsel

are not relieved from the applicable provisions of that

section respecting notice of entry.

THIS IS THE DECISION AND ORDER OF THIS COURT.

Dated: March 5, 1996

Mayville, New York

_________________________________

JOSEPH GERACE

Supreme Court Justice

PAPERS CONSIDERED:

(1) Notice of Motion; dated October 30, 1995.

(2) Affidavit in Opposition; dated November 21, 1995.

(3) Reply Affidavit; dated December 4, 1995.

(4) Affidavit in Reply; dated December 13, 1995.

(5) Attorney's Affidavit in Response; dated January 9,

1996.

(6) Excerpt of Testimony; dated September 15, 1995.

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, is duly granted in the above

entitled action on the day of , 1996, and

filed by the Court in the office of the Clerk of the County

of Chautauqua on the same date.