Summary
holding that plaintiff's lost earnings were not established with reasonable certainty where "[t]he award for past and future lost wages . . . was based only on plaintiff's testimony regarding prior employment, unsubstantiated by any tax returns or W-2 forms, and his current employment of less than two weeks"
Summary of this case from Mugavero v. Arms Acres, Inc.Opinion
November 3, 2000.
Judgment, Supreme Court, Bronx County (Janice Bowman, J.), entered August 23, 1999, which, upon a jury verdict, awarded plaintiff the principal sum of $507,400, and bringing up for review an order, same court and Justice, entered July 12, 1999, which denied defendant's motion to set aside the verdict, unanimously modified, on the law, to vacate the award for past and future lost earnings, and otherwise affirmed, without costs, and the matter remanded for further proceedings. Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.
Brian J. Isaac, for plaintiff-respondent.
Nancy D. Lyness, for defendant-appellant.
Before: Nardelli, J.P., Tom, Lerner, Buckley, Friedman, JJ.
Defendant's motion to set aside the verdict as to liability on the grounds that there was insufficient evidence to support it was properly denied. "Disputes as to proof are for the `jury to resolve in assessing all of the evidence as well as the credibility of the witnesses'" (Bernstein v. Red Apple Supermarkets, 227 A.D.2d 264, appeal dismissed 89 N.Y.2d 961, quoting Niewieroski v. Natl. Cleaning Contrs., 126 A.D.2d 424, 425, lv denied 70 N.Y.2d 602). The evidence here was not such that it was "utterly irrational" for the jury to reach the conclusion it did (see, Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 499). Nor did the evidence so preponderate in defendant's favor that the jury could not have reached its conclusion upon a fair interpretation of the evidence (see, Bernstein v. Red Apple Supermarkets, supra, at 265).
The award for past and future lost wages, however, was based only on plaintiff's testimony regarding prior employment, unsubstantiated by any tax returns or W-2 forms, and his current employment of less than two weeks. Thus, plaintiff's past and future earnings were not established with reasonable certainty (see,Razzaque v. Krakow Taxi, Inc., 238 A.D.2d 161, 162, citing, e.g.,Poturniak v. Rupcic, 232 A.D.2d 541) and the award therefor cannot be permitted to stand. The jury award for future pain and suffering, on the other hand, was adequately supported and was not excessive.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.