This action was commenced to recover damages for injuries sustained on January 31, 2002, when plaintiff, who was employed as an apprentice electrician, fell into an unbarricaded trench located at the job site owned by defendant Nicotra Hotel (hereinafter "Nicotra"). At the time of this incident, plaintiff was an employee of ADCO Electrical Corp. (Hereinafter "ADCO"), the prime contractor. Nicotra, as owner of the project, employed defendant Theodore Williams Construction Company, LLC (hereinafter "TWCC") as the construction manager.^[FN1]

Plaintiff remained out of work for approximately one hundred twenty (120) weeks after the accident, during which time she underwent physical therapy for approximately six months. Although plaintiff did not return to work as an electrician's apprentice, she did attend classes toward an associate's degree, completed in May 2005, and became pregnant approximately one and one-half years after the accident.

On November 4, 2007, upon conclusion of the damages phase of the trial, the jury's verdict was as follows: (a) no award for past pain and suffering, including loss of enjoyment of life; (b) $13,048.00 for loss of earnings to compensate plaintiff for approximately twenty-eight weeks of lost employment; and (c) no award for damages for future pain and suffering, including loss of enjoyment of life.

In support of her motion to set aside the jury verdict, plaintiff maintains, inter alia, that [*2]the verdict is inconsistent in that plaintiff suffers ongoing pain radiating from her neck into her right shoulder, an inability to raise her arm over her head and she required treatment with a physical therapist two or three times per week for approximately six months after the accident.In addition, plaintiff testified to various activities of daily living in which she could no longer engage and that she could not return to work.

Plaintiff also avers that the testimony of Dr. Philip Robbins, plaintiff's expert who examined her in 2002, found that there were physical impairments at the time of examination: (a) restriction in range of motion of the right shoulder; (b) impingement syndrome in this right shoulder; (c) cervical derangement resulting in permanent partial disability of a mild degree.

Counsel for the parties stipulated to the weekly amount of lost wages ($466.00 per week), received while plaintiff was out of work and receiving physical therapy, which terminated at the end of August, 2002. The jury's verdict awarded damages for past lost earnings, which breaks down as $466.00 for twenty-eight (28) weeks, for a total of $13,048.00

TWCC maintains, in substance, that the jury verdict was reflective of an analysis which provided a distinction between economic and non-economic damages, citing Galaz v Sobe, 280

AD2d 427, which upheld a verdict awarding past medical damages but no award for past or future pain and suffering because the injury was de minimis. In support of this position, defendants note that Dr. Robbins could not conclude for the record that the impingement syndrome was caused by the work-related accident which occurred in January, 2002.

In contrast, Dr. William B. Head testified for the defendants that upon examination of plaintiff,who was eight weeks pregnant at the time, on March 16, 2004, he concluded that there was no objective evidence of any permanent neurological condition or disability. In addition, Dr. Head testified, in substance, that he did not observe any sign of neurological abnormality whatsoever and concluded that plaintiff was able to engage in her customary activities of daily living.

Admittedly, the power of a trial court to exercise its discretion and set aside a jury verdict is a broad one, intended to ensure that justice is done (see, Micallef v Miehle Co., 39 NY2d 376; Nicastro v Park, 113 AD2d 129). However, "[the] fact that determination of a motion to set aside a verdict involves judicial discretion does not imply ... that the trial court can freely interfere with any verdict that is unsatisfactory or with which it disagrees. A preeminent principle of jurisprudence in this area is that the discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, not the trial court, and a court must act warily lest overzealous enforcement of its duty to oversee the proper administration of justice leads it to overstep its bounds and unnecessarily interfere with the fact [*3]finding function of the jury to a degree that amounts to an

usurpation of the jury's duty'" (Nicastro v Park, supra at 133, quoting from Ellis v Hoelzel, 57 AD2d 968, 969).

The court is constrained to conclude that the jury verdict which awarded damages solely for loss of wages and denied compensation for past pain and suffering was not inconsistent, nor is there evidence of irreconcilable compromise. The jury could have given credence to defendants' expert who concluded that plaintiff sustained no permanent injury as a result of the accident and found that although plaintiff's injuries could have prevented her from returning to physical labor for approximately twenty eight weeks it did not cause her past pain and suffering (see, Batts v Rutrick, 298 AD2d 417, citing Gribbon v Missionary Sisters of the Sacred Heart, 244 AD2d 185; Kinsella v Berley Realty Corp., 240 AD2d 374).

Likewise, if the jury credited Dr. Head's testimony of lack of permanence of injuries, failure to render a verdict awarding compensation for pain and suffering is also not against the weight of

the evidence and may be viewed as a fair interpretation of the evidence in that the jury could have

reasonably concluded that plaintiff's injury could have prevented her from engaging in strenuous physical activity for twenty-eight (28) weeks but that plaintiff did not suffer compensable past pain and suffering (see, Pelosi v TJA Maintenance Programming, 247 AD2d 453).

Manifestly, in exercising its discretionary power pursuant to CPLR 4404(a), the court is obliged to proceed with "considerable caution," lest it intrude unnecessarily upon the lawful province of the jury (Nicastro v Park, supra at 133). To reiterate a key principle which was stated earlier, that the determination of a motion to set aside a jury verdict involves an exercise of judicial discretion "does not imply * * * that the trial court can freely interfere with any verdict * * * with which it [may] disagree[ ]." (Id.)

Plaintiff relies on Califano v Automotive Rentals, 293 AD2d 436, in which the Second Department stated that a jury award for past and future medical expenses, past loss of earnings and a denial of past and future pain and suffering constituted a material deviation from what would be reasonable compensation. However, the appellate court concluded that it was a strong likelihood that the verdict was a compromise, given that the jury necessarily concluded that Plaintiff was injured as a result of the accident. As stated above, Plaintiff's own expert did not conclude that the partial disability he diagnosed was caused by her fall on January 31, 2002. Accordingly, the Court cannot conclude that this jury rendered a compromise verdict, given the totality of evidence adduced at trial.

Plaintiff's remaining contentions have been considered and found to be without merit.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 7, 2008/s/

Thomas P. Aliotta, J.S.C.