Matteson v. City of Dunkirk

Full title: DAVID MATTESON, Respondent v. CITY OF DUNKIRK, Appellant

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: May 7, 1999

261 A.D.2d 969 (N.Y. App. Div. 1999)

689 N.Y.S.2d 906

Opinion

May 7, 1999

Appeal from Order of Supreme Court, Chautauqua County, Gerace, J, — Preclusion.

Present — Green, J. P., Wisner, Pigott, Jr., Hurlbutt and Scudder, JJ.

Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying defendant's motion to preclude expert testimony pertaining to future lost earnings upon the new trial. Following the first trial, the court granted plaintiff's motion to set aside the verdict insofar as it awarded plaintiff no damages for future pain and suffering and granted a new trial solely on that issue. At the first trial, the court did not submit to the jury the issue of future lost earnings, and no appeal was taken by plaintiff. Thus, plaintiff is precluded by the law of the case from relitigating the issue of future lost earnings (see, Outeiral v. Otis El., 220 A.D.2d 255; see also, Witmer v. Smith, 193 A.D.2d 1080).