Opinion
April 15, 1994
Appeal from the Supreme Court, Oswego County, Nicholson, J.
Present — Denman, P.J., Green, Fallon, Callahan and Doerr, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: The jury's award of $282,000 for past and future pain and suffering is not inadequate and does not deviate materially from what would be reasonable compensation (see, CPLR 5501 [c]; Baksys v Berton, 169 A.D.2d 695). There was insufficient evidence adduced at trial, however, to support the jury awards for past and future loss of earnings and past impairment of earning ability. Plaintiff failed to provide evidence demonstrating the difference between what he is now able to earn and what he could have earned if he had not been injured (see, Kaylor v Hess Corp., 141 A.D.2d 331, 332, lv denied 73 N.Y.2d 704). Plaintiff's proof did not allow the loss of earnings to be ascertained with reasonable certainty (see, Reichman v Warehouse One, 173 A.D.2d 250, 252, lv denied 78 N.Y.2d 1058). Consequently, the verdict must be reduced by the amounts of $26,640 for past loss of earnings, $412,500 for future loss of earnings, and $112,500 for past impairment of earning ability. We remit the matter to Supreme Court to recalculate the judgment in favor of plaintiff in accordance with this memorandum. The judgments in favor of defendants Bratt and defendant Czerwiak against third-party defendant Fields must likewise be recalculated upon remittal. We have examined the remaining issues raised by defendants and third-party defendant and find them either unpreserved or lacking in merit.