| Shubbuck v Conners |
| 2010 NY Slip Op 03577 [72 AD3d 1554] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| Justin M. Shubbuck, Respondent, v Sean W. Conners et al.,Appellants. |
—[*1] Wayne C. Felle, P.C., Williamsville (Wayne C. Felle of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Erie County (Paula L. Feroleto, J.), enteredSeptember 30, 2008 in a personal injury action. The judgment awarded plaintiff damages againstdefendants upon a jury verdict.
It is hereby ordered that the judgment so appealed from is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen the taxicab he was driving collided with a vehicle operated by defendant Sean W. Connersand owned by defendant Denise M. Sabuda. Contrary to defendants' contention, Supreme Courtproperly granted that part of plaintiff's pretrial motion for partial summary judgment on the issuewhether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). The casethereafter proceeded to trial, whereupon the jury rendered a verdict in favor of plaintiff andawarded him damages for past and future medical expenses, lost wages, and pain and suffering.There is no merit to the contention of defendants that the finding of the jury that plaintiff'snegligence was not a substantial factor in causing the accident is against the weight of theevidence. It cannot be said that the verdict "could not have been reached on any fairinterpretation of the evidence" (Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995][internal quotation marks omitted]).
With respect to the award of damages, defendants contended in their post-trial motion thatthe evidence is legally insufficient to support the award with respect to future lost wages andfuture medical expenses. We reject that contention. " 'It is axiomatic that loss of earnings mustbe established with reasonable certainty . . . and the initial burden of proving lostwages is on the [plaintiff]' . . . 'Recovery for lost earning capacity is not limited to aplaintiff's actual earnings before the accident, however, and the assessment of damages mayinstead be based upon future probabilities' " (Huff v Rodriguez, 45 AD3d 1430, 1433 [2007]; seeKirschhoffer v Van Dyke, 173 AD2d 7, 10 [1991]). At trial, plaintiff presented [*2]uncontroverted testimony in support of his claim for future lostwages that the construction company where he was employed as a supervisor paid him $4.50 lessper hour than other supervisors because of his physical limitations, which limitations the medicalproof established were the direct result of his injuries. This Court has previously determined thata plaintiff's testimony concerning earnings may alone be legally sufficient to support a claim forlost wages (see Dickerson v Woodbridge Constr. Group, 274 AD2d 945, 946 [2000];Butts v Braun, 204 AD2d 1069, 1069-1070 [1994]). In this case, it cannot be said "thatthere is simply no valid line of reasoning and permissible inferences which could possibly leadrational [persons] to the conclusion reached by the jury on the basis of the evidence presented attrial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). The same reasoning setforth in Cohen applies equally with respect to the award of damages for future medicalexpenses.
All concur except Smith, J.P., and Pine, J., who dissent in part and vote to modify inaccordance with the following memorandum.
Smith, J.P., and Pine, J. (dissenting in part). We respectfully dissent in part and would setaside the award of damages for future lost wages. It is well settled that future lost wages must beestablished with reasonable certainty and that plaintiff had the initial burden of proof withrespect to that issue (see generally Huffv Rodriguez, 45 AD3d 1430, 1433 [2007]; Man-Kit Lei v City Univ. of N.Y., 33 AD3d 467, 469-470 [2006],lv denied 8 NY3d 806 [2007];Tassone v Mid-Valley Oil Co., 5 AD3d 931, 932 [2004], lv denied 3 NY3d 608[2004]). Here, the sole evidence presented at trial with respect to that issue was theunsubstantiated testimony of plaintiff, who testified that he earned $10 per hour as a managerfollowing the accident, that other managers earned $15 per hour, and that, in his opinion, theyreceived higher wages because the injuries he sustained in the accident rendered him unable toperform the physical labor they performed. Other than plaintiff's unsubstantiated opinions, therewas no evidence establishing the reason for the pay differential or, indeed, whether there wassuch a pay differential. Such speculative and "[u]nsubstantiated testimony, withoutdocumentation, is insufficient to establish [future lost wages]" (Lodato v Greyhawk N. Am., LLC, 39AD3d 494, 496 [2007]). Although plaintiff was not required to present expert testimony toestablish his claim for future lost wages (see generally Kirschhoffer v Van Dyke, 173AD2d 7, 10 [1991]), he nevertheless failed to meet his burden of establishing his future lostwages with the requisite reasonable certainty by, e.g., providing documentary evidence"demonstrating the difference between what he is now able to earn and what he could haveearned if he had not been injured" (Burdick v Bratt, 203 AD2d 950, 951 [1994], lvdenied 84 NY2d 801 [1994]). Indeed, "the record is devoid of any W-2 forms, tax returns orother documentation of income earned . . . [We thus conclude that], even ifplaintiff's testimony [was] fully credited, [it was] insufficient to support the amount of damagesawarded by the jury" (O'Brien vMbugua, 49 AD3d 937, 940 [2008]; see Faas v State of New York, 249 AD2d731, 732-733 [1998]). We therefore would modify the judgment by granting that part ofdefendants' post-trial motion seeking to set aside the award of damages for future lost wages andsetting aside that award. Present—Smith, J.P., Centra, Lindley, Sconiers and Pine, JJ.