| Vukovich v 1345 Fee LLC |
| 2010 NY Slip Op 02986 [72 AD3d 496] |
| April 13, 2010 |
| Appellate Division, First Department |
| Michael F. Vukovich, Appellant, v 1345 Fee LLC et al.,Respondents. |
—[*1] Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Denis Farrell of counsel), for1345 Fee LLC, Alliance Capital Management Corporation, Alliance Capital Management L.P.,Alliance Capital Management Holding LP., 1345 Leasehold, LLC and Plaza Construction Corp.,respondents. Shaub Ahmuty Citrin & Spratt LLP, Lake Success (Robert M. Ortiz of counsel), for ADCOElectrical Corp., respondent.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered September 1,2009, which, after a jury verdict in plaintiff's favor, granted the motion by defendant ADCOElectrical to set aside the awards for past and future pain and suffering and lost earnings only tothe extent of granting a new trial solely as to the future awards, unless plaintiff stipulated to areduction of such damages from $1,661,000 to $1 million for future pain and suffering, and from$2,103,249 to $1 million for future loss of earnings, unanimously affirmed, without costs.
Plaintiff, who was 49 years old at the time of the accident and 53 when the trial took place,suffered head, neck and back injuries as the result of a fall from a ladder, precipitated by anelectrical shock he received when the nape of his neck came into contact with live, uncappedelectrical wires protruding from an open junction box. The measure of damages awarded forpersonal injury is primarily a question for the jury, which is entitled to great deference based onits evaluation of the evidence, including conflicting expert testimony. However, a court mayreview a jury's award for pain and suffering to ascertain whether it deviates materially from whatwould be considered reasonable compensation under the circumstances (CPLR 5501 [c]), and forlost earnings to determine if it was established with the requisite reasonable certainty (see Behrens v Metropolitan Opera Assn.,Inc., 18 AD3d 47, 51 [2005]).
The evidence presented at trial reveals that while this accident aggravated preexistingdegenerative conditions, the two surgical procedures performed on plaintiff took place within aweek of one another so as to minimize the recovery time and were largely successful inalleviating, albeit not eliminating, his symptoms; that another surgery was contemplated in thefuture; that he would need to continue undergoing physical therapy and take variousanti-inflammatory muscle-relaxant and pain medication; and that he could no longer carry outmanual labor, although he would not be precluded from performing sedentary work. Thereduction of [*2]the jury's award was proper, since the awarddeviated from reasonable compensation under the circumstances (see Perez v Creations Assoc., L.P., 11AD3d 328 [2004]).
As to the award for future lost earnings, plaintiff's economist projected this claim bypresuming plaintiff would work as a steamfitter 50 weeks a year for another 12 years, under thecollective bargaining agreement negotiated by Local 638 of the Steamfitters Union, whileignoring the fact that plaintiff had actually been working, both before and after the accident,through Local 355 of the Services Workers Union, at wages substantially less than thoseavailable through Local 638. This economic analysis utilized the higher wages and benefitsavailable from Local 638, applying a growth rate of 3.5% per year through plaintiff's anticipatedretirement at age 65, and assumed that he would work 35 hours per week (1,750 hours eachyear), notwithstanding testimony from the vice-president of Local 638 that a steamfitter is luckyto work even 1,700 hours per year. This estimate, predicated on various assumptions that lackedany evidentiary support, was unduly inflated, and thus justified the court's reduction of the jury'saward. Concur—Mazzarelli, J.P., Sweeny, Renwick, Freedman and RomÁn, JJ.