Opinion
2004852KC
Decided April 22, 2005.
Appeal by defendants from a judgment of the Civil Court, Kings County (A. Fisher Rubin, J.), entered on March 22, 2004, in favor of plaintiff Michael Melville in the principal sum of $1,192,192.67.
Judgment unanimously reversed without costs and a new trial ordered limited to the issue of damages unless plaintiff Michael Melville, within 30 days after service upon him of a copy of the order entered hereon, with notice of entry, serves and files in the office of the Clerk of the Civil Court, Kings County, a written stipulation consenting to decrease the verdict as to damages from the principal sum of $1,192,192.67 to the principal sum of $862,192.67, representing $225,000 for past pain and suffering, $500,000 for future pain and suffering, $125,000 for past lost earnings and $12,192.67 for medical expenses, and to the entry of a judgment amended accordingly; in the event that plaintiff so stipulates, then the judgment, as so decreased and amended, is affirmed without costs.
PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
Plaintiff Michael Melville, an ironworker, who was almost 33 years old on the day of the accident, February 26, 1996, was straddling a beam approximately 40 feet above the ground when he was struck by a load being hoisted which was unsecured by a guideline. After a trial on the issue of liability, the jury found defendants 100% at fault. After a trial on the issue of damages, the jury returned a verdict awarding plaintiff, inter alia, $225,000 for past pain and suffering, $500,000 for future pain and suffering, $200,000 for past lost earnings, and $255,000 for future lost earnings. The award for future pain and suffering was based on a period of 37 years. The award for loss of future earnings was based on a period of 22 years. The trial court denied defendants' motion to set aside the verdict as excessive.
While the amount of damages to be awarded for personal injuries and related losses is primarily a question for the jury, the award may be set aside when it deviates materially from what would be reasonable compensation ( Van Ness v. New York City Tr. Auth., 288 AD2d 374). With respect to damages for past and future pain and suffering, the plaintiff presented evidence establishing that as a result of the underlying incident, he suffered injuries to his cervical spine and lumbar spine, with permanent limitation of motion. He also injured his left knee and left ankle. Considering the nature of plaintiff's injuries, the award for past pain and suffering as well as future pain and suffering did not deviate substantially from what would be reasonable compensation. Plaintiff testified that he still feels numbness in his left ankle, left shoulder and neck. He also feels the sensation of needles sticking in his left ankle which moves up into his calf ( see Orellano v. 29 E. 37th St. Realty Corp., 4 AD3d 247).
However, based upon this court's review of the evidence, we find that the jury's determination of the plaintiff's damages with respect to both past and future lost earnings cannot withstand scrutiny. The award for past lost earnings in the amount of $200,000, which includes benefits for the 13 months plaintiff was unable to work, must be reduced to $125,000 based upon his witness' testimony, the only competent evidence offered by plaintiff. Moreover, inasmuch as plaintiff did not establish with reasonable certainty his future lost earnings, that award is purely speculative and cannot stand ( see Razzaque v. Krakow Taxi, 238 AD2d 161).