Opinion
No. 4918.
August 4, 2011.
Judgment, Supreme Court, Bronx County (Cynthia S. Kern, J.), entered December 8, 2009, upon a jury verdict, inter alia, awarding plaintiff $600,000 in past pain and suffering, $1,500,000 in future pain and suffering, $1,500,000 in future lost earnings, and $750,000 for future medical expenses, unanimously modified, on the law and the facts, to vacate the award for future lost earnings and the awards for past and future pain and suffering, and the matter remanded for a new trial solely as to damages for past and future pain and suffering, and otherwise affirmed, without costs, unless plaintiff, within 30 days of service of a copy of this order, stipulates to reduce the award for future pain and suffering to $1,200,000, and to the entry of an amended judgment in accordance therewith.
Wallace D. Gossett, Brooklyn (Lawrence A. Silver of counsel), for appellant.
Law Offices of Lawrence P. Biondi, Garden City (Lisa M. Comeau of counsel), for respondent.
Before: Concur — Gonzalez, P.J., Sweeny, Moskowitz, Acosta and Manzanet-Daniels, JJ.
Plaintiff failed to prove future lost earnings with reasonable certainty ( see DeVirgilio v Feller Precision Stage Lifts, Inc., 47 AD3d 522; Harris v City of New York, 2 AD3d 782, 783-784, lv dismissed 2 NY3d 758). The trial evidence was insufficient to support the assumption underlying the award, i.e., that plaintiff would be unable to perform any work for the remainder of his life.
The award for future medical costs was based on legally sufficient evidence and was not against the weight of the evidence. The jury was entitled to credit the testimony of plaintiffs treating physician ( Crooms v Sauer Bros. Inc., 48 AD3d 380, 382).
We find that the awards for past and future pain and suffering deviate to the extent indicated from what would be reasonable compensation ( see CPLR 5501 [c]; Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 275-276).