From Casetext: Smarter Legal Research

Ferrarese v. USAA Casualty Insurance

Appellate Division of the Supreme Court of New York, Second Department
Apr 29, 2002
293 A.D.2d 709 (N.Y. App. Div. 2002)

Opinion

2001-04594

Argued April 11, 2002.

April 29, 2002.

In an action to recover damages for breach of an insurance contract, the plaintiff appeals from a judgment of the Supreme Court, Richmond County (Lebowitz, J.), entered March 26, 2001, which, upon the granting of the defendant's motion to dismiss the complaint for failure to establish a prima facie case made at the close of the plaintiff's evidence, is in favor of the defendant and against him.

Bernadette Panzella, P.C., Staten Island, N.Y. (Robert A. Mulhall of counsel), for appellant.

Robert M. Spadaro, New York, N.Y., for respondent.

Before: ANITA R. FLORIO, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, JJ.


ORDERED that the judgment is affirmed, with costs.

Contrary to the plaintiff's contention, it was incumbent upon him, in this action to recover damages for breach of an insurance contract, to prove his lost earnings with reasonable certainty in establishing the damages element of his prima facie case (see Lloyd v. Town of Wheatfield, 67 N.Y.2d 809; Wenger v. Alidad, 265 A.D.2d 322; Haven v. Donro Realty Corp., 121 A.D.2d 504). Since the plaintiff did not introduce any evidence at trial to verify his 1989 income, the Supreme Court properly dismissed his complaint at the conclusion of his case.

Additionally, without determining whether the court's preclusion of the testimony of two of the plaintiff's witnesses was proper, any error was harmless because these witnesses, a claims adjuster and his supervisor, would not have been able to remedy the gap in the plaintiff's prima facie case (see CPLR 2002; Wolosin v. Campo, 256 A.D.2d 332; Cave v. Foley, 234 A.D.2d 410; Cotter v. Mercedes-Benz Manhattan, 108 A.D.2d 173).

FLORIO, J.P., SMITH, KRAUSMAN and TOWNES, JJ., concur.


Summaries of

Ferrarese v. USAA Casualty Insurance

Appellate Division of the Supreme Court of New York, Second Department
Apr 29, 2002
293 A.D.2d 709 (N.Y. App. Div. 2002)
Case details for

Ferrarese v. USAA Casualty Insurance

Case Details

Full title:CHRISTOPHER FERRARESE, appellant, v. USAA CASUALTY INSURANCE COMPANY…

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

Date published: Apr 29, 2002

Citations

293 A.D.2d 709 (N.Y. App. Div. 2002)
741 N.Y.S.2d 422