Opinion
6088 Index 300995/07
03-22-2018
Yvette MARTINEZ, Plaintiff–Respondent, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., Defendants–Appellants, "John Doe," Defendant.
Lawrence Heisler, Brooklyn (Anna J. Ervolina of counsel), for appellants. William Schwitzer & Associates, P.C., New York (Howard R. Cohen of counsel), for respondent.
Lawrence Heisler, Brooklyn (Anna J. Ervolina of counsel), for appellants.
William Schwitzer & Associates, P.C., New York (Howard R. Cohen of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Kahn, Kern, Singh, JJ.
Judgment, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered April 11, 2016, upon a jury verdict awarding plaintiff $300,000 for past pain and suffering, $1.5 million for future pain and suffering, $300,000 for future medical expenses, and $107,000 for past lost earnings, unanimously modified, on the law and the facts, to vacate the awards for past lost earnings, future medical expenses and future pain and suffering, and to remand the matter for a new trial of damages for future medical expenses and future pain and suffering, unless plaintiff stipulates, within 30 days after entry of this order, to reduce the awards for future medical expenses to $260,000 and future pain and suffering to $900,000, and to the entry of an amended judgment in accordance therewith, and otherwise affirmed, without costs.
The verdict in plaintiff's favor is supported by sufficient evidence (see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978] ). The jury could rationally have concluded that from her vantage point the bus driver could have seen the pothole in the street at the bus stop and that defendants' duty to stop the bus at a place where plaintiff could disembark safely was breached (see Archer v. New York City Tr. Auth., 25 A.D.3d 351, 352, 806 N.Y.S.2d 582 [1st Dept. 2006], citing Malawer v. New York City Tr. Auth., 18 A.D.3d 293, 795 N.Y.S.2d 201 [1st Dept. 2005], affd 6 N.Y.3d 800, 812 N.Y.S.2d 438, 845 N.E.2d 1268 [2006] ; Engram v. Manhattan & Bronx Surface Tr. Operating Auth., 190 A.D.2d 536, 593 N.Y.S.2d 213 [1st Dept. 1993] ).
The verdict is also supported by the weight of the evidence (see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ). The conflict between plaintiff's testimony that she stepped into a pothole while exiting the bus and the testimony of two witnesses that plaintiff slipped and fell as she attempted to step onto the curb merely presented an issue of credibility for the jury to resolve.
Plaintiff failed to establish her past lost earnings with reasonable certainty since her testimony was unsubstantiated by tax returns, W–2 forms, or other documentation ( Orellano v. 29 E. 37th St. Realty Corp., 4 A.D.3d 247, 772 N.Y.S.2d 659 [1st Dept. 2004], lv denied 4 N.Y.3d 702, 790 N.Y.S.2d 648, 824 N.E.2d 49 [2004] ; cf. Kane v. Coundorous, 11 A.D.3d 304, 305, 783 N.Y.S.2d 530 [1st Dept. 2004] [plaintiff's testimony about lost earnings sufficient where defendants "expressly declined to challenge such testimony by the use of the W–2 forms in their possession"] ).
The award for future medical expenses is excessive to the extent indicated (see CPLR 5501[c] ; see e.g. Togut v. Riverbay Corp., 114 A.D.3d 535, 536, 980 N.Y.S.2d 428 [1st Dept. 2014] ), as is the award for future pain and suffering (see Rivera v. New York City Tr. Auth., 92 A.D.3d 516, 938 N.Y.S.2d 535 [1st Dept. 2012] ; Alicea v. City of New York, 85 A.D.3d 585, 927 N.Y.S.2d 321 [1st Dept. 2011] ; Lowenstein v. Normandy Group, LLC, 51 A.D.3d 517, 518, 859 N.Y.S.2d 29 [1st Dept. 2008] ).