______________________________

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.