STATE OF NEW YORK

SUPREME COURT: COUNTY OF CHAUTAUQUA

______________________________



JOHN M. GREEN,


Plaintiff,


-vs- H-05342



PAUL I. HESLINK,

THEODORE W. MATHEWS

and

MATLINK, a Partnership,



Defendants,


______________________________



JOHNSON, MULLAN & BRUNDAGE, P.C.

(Byron Johnson, Esq. of

Counsel) for Plaintiff


QUINN, McGARRY & CAFFERY, P.C.

(Kenneth A. Patricia, Esq. of

Counsel) for Defendant


JOHN P. RICE, III, ESQ.

Attorney for Defendant



DECISION AND ORDER


GERACE, J.



Plaintiff moves for an order setting aside the verdict


of the jury rendered September 29, 1995 which awarded


plaintiff $9,880.00 for impairment of earning ability;


$10,000 for pain and suffering including loss of enjoyment


of life and medical expenses of $13,235.35. The jury fixed


the fault of defendants at 60% and the plaintiff at 40%.


Plaintiff is 32 years of age. The undisputed medical


testimony indicates plaintiff exhibits residual dysethesia


from an injury to the infra-patellar branch of the


saphenous nerve of his left leg, and, it is permanent.


However, once his fractures healed, plaintiff again


took up construction work and has lost little time from his


employment.


In JAKALOW VS JOSEPHINE CONSOLI, 175 AD2d 826, the


Appellate Division in the Second Department granted a


similar motion unless the defendants consented to increase


damages for pain and suffering from $12,000 to $50,000.


That approach is appropriate here.


The motion of plaintiff for a new trial on the issue


of damages is granted, unless defendant consents to


increase the damages for pain and suffering from $10,000 to


$40,000, for total damages of $63,115.35. Applying the 60%


liability of defendants will net plaintiff $37,869.21.


This is the DECISION and ORDER of this Court.




Dated: October , 1995

Mayville, New York



____________________________

JOSEPH GERACE

Supreme Court Justice



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 , 1995, and

duly entered in the office of the Clerk of the County of

Chautauqua on November 3, 1995.