| Lauro v City of New York |
| 2009 NY Slip Op 08186 [67 AD3d 744] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Michael Lauro, Respondent-Appellant, v City of NewYork et al., Appellants-Respondents. |
—[*1] Parker & Waichman, P.C. (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJosephIII], of counsel), for respondent-appellant.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of a judgment of the Supreme Court, Queens County (Dollard, J.),entered April 21, 2008, as, upon so much of a jury verdict as awarded the plaintiff the principalsums of $160,000 for past pain and suffering and $650,000 for future pain and suffering, andupon so much of an order of the same court dated December 11, 2007, as denied that branch oftheir motion pursuant to CPLR 4404 which was to set aside the damages awards for past andfuture pain and suffering, is in favor of the plaintiff and against them in the principal sum of$830,000, and the plaintiff cross-appeals, as limited by his brief, from so much of the samejudgment as, upon so much of the order dated December 11, 2007, as granted that branch of thedefendants' motion pursuant to CPLR 4404 which was to set aside so much of the jury verdict asawarded him the principal sum of $1,200,000 for future loss of earnings, is in favor of thedefendants and against him, in effect, dismissing the demand for damages for future loss ofearnings.
Ordered that the judgment is modified, on the law, by deleting the provision thereof, ineffect, dismissing the demand for damages for future loss of earnings; as so modified, thejudgment is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiff, thatbranch of the defendants' motion pursuant to CPLR 4404 which was to set aside so much of thejury [*2]verdict as awarded the plaintiff the principal sum of$1,200,000 for future loss of earnings is denied, the order dated December 11, 2007, is modifiedaccordingly, so much of the jury verdict as awarded the plaintiff the principal sum of $1,200,000for future loss of earnings is reinstated, and the matter is remitted to the Supreme Court, QueensCounty, for the entry of an appropriate amended judgment.
The plaintiff was involved in two accidents relevant to this appeal and cross appeal. OnNovember 17, 1989 he sustained an injury in a car accident while performing his duties as a NewYork City Police Officer, and on April 13, 2003 he slipped and fell in a police departmentbuilding and injured his ribs and his back. The plaintiff brought this action to recover damagesresulting from the 2003 slip and fall accident.
The Supreme Court granted that branch of the defendants' motion pursuant to CPLR 4404which was to set aside so much of the jury verdict as awarded the plaintiff the principal sum of$1,200,000 for future loss of earnings and, in effect, dismissed the plaintiff's demand fordamages for future loss of earnings. It reasoned that collateral estoppel applied to bar theplaintiff from recovering damages for future loss of earnings due to an administrativedetermination of the relevant medical board, which found, inter alia, that "[t]he competent causalfactor [of the plaintiff's disability was] the line of duty injury of November 17, 1989."
The plaintiff contends that he should not have been collaterally estopped from seekingdamages for future loss of earnings. We agree. Collateral estoppel has been held to apply toadministrative as well as judicial proceedings (see Matter of Palm Mgt. Corp. v Goldstein, 29 AD3d 801 [2006],affd on other grounds 8 NY3d 337 [2007]; Jenkins v Meredith Ave. Assoc., 238AD2d 477 [1997]). Under the circumstances of this case, however, collateral estoppel should notbe applied because, inter alia, it was not established that in the initial proceeding the plaintiff hada full and fair opportunity to litigate the issue of the extent to which his injuries were caused bythe 1989 accident and the extent to which they were caused by the 2003 accident (see Jenkinsv Meredith Ave. Assoc., 238 AD2d 477 [1997]). Accordingly, the Supreme Court should nothave set aside so much of the jury verdict as awarded the plaintiff the principal sum of$1,200,000 for future loss of earnings.
Additionally, contrary to the defendants' contentions, the Supreme Court properly gave amissing witness instruction (see Taverasv Martin, 54 AD3d 667 [2008]; Brown v City of New York, 50 AD3d 937 [2008]). " '[W]hen adoctor who examines an injured plaintiff on the defendant's behalf does not testify at trial, aninference generally arises that the testimony of such witness would be unfavorable to thedefendant. The defendant may defeat this inference by demonstrating that the testimony wouldbe merely cumulative, the witness was unavailable or not under the defendant's control, or thewitness would address matters not in dispute' " (Hanlon v Campisi, 49 AD3d 603, 604 [2008], quoting Brooks v Judlau Contr., Inc., 39AD3d 447, 449 [2007], revd 11 NY3d 204 [2008]). Here, the defendants failed todefeat the inference (see Taveras vMartin, 54 AD3d 667 [2008]; Brown v City of New York, 50 AD3d 937 [2008]).
The award of damages for past and future pain and suffering did not deviate materially fromwhat would be reasonable compensation (see CPLR 5501; Wimbish v New YorkCity Tr. Auth., 305 AD2d 586 [2003]). Mastro, J.P., Miller, Angiolillo and Austin, JJ.,concur.