On January 18, 2015, Toni Pecoraro slipped and fell on ice on the exterior stairs of the building where she was living in Brooklyn. She sued the building owner claiming she sustained extensive injuries in the fall and that the owner was at fault for not maintaining the premises in a safe condition.

There was conflicting evidence as to whether there was a storm in progress (in which case the owner could be free from fault) or whether the ice had been present for a long enough time that the owner should have cleared it away (in which case the owner could be at fault). The Kings County jury found that the fault should be apportioned – 65{af10dd43db2cc98d89795b441eef0c238f898fa1401b2755c0b949d235dc2371} to defendant and 35{af10dd43db2cc98d89795b441eef0c238f898fa1401b2755c0b949d235dc2371} to plaintiff.

The jury then awarded pre-apportionment pain and suffering damages in the sum of $35,100 ($34,000 past – four years, $1,100 future – one year).

Plaintiff, then 40 years old, appealed arguing that the damages award was inadequate; however, in Pecoraro v. Tribuzio (2d Dept. 2023), the award was affirmed.

Plaintiff claimed that her injuries from the fall included a right knee sprain and cervical, thoracic and lumbar strains. She was examined and released from the local hospital and then received physical therapy and other conservative treatment until an MRI of her right knee two months after the accident revealed a meniscal tear with respect to which she underwent arthroscopic surgery a month later.

As the appellate court noted, there was conflicting evidence at trial regarding plaintiff’s physical condition prior to the accident from which the jury could infer that much of plaintiff’s pain and suffering was attributable to injuries she sustained in other, prior accidents and to her preexisting degenerative conditions.

Ms. Pecoraro injured her right knee in another slip and fall incident in 2008 (and sustained various injuries in car accidents in 2010 and 2011). MRI reports in 2008 and 2010 revealed a pre-existing meniscal tear in her knee with respect to which she underwent right knee surgery in 2010.