| Janda v Michael Rienzi Trust |
| 2010 NY Slip Op 08534 [78 AD3d 899] |
| November 16, 2010 |
| Appellate Division, Second Department |
| Aleksander Janda, Respondent, v Michael Rienzi Trust etal., Appellants. |
—[*1] Brand Brand Nomberg & Rosenbaum, LLP, New York, N.Y.(Brett J. Nomberg of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from a judgmentof the Supreme Court, Queens County (Siegal, J.), dated August 11, 2009, which, upon a juryverdict, inter alia, awarding the plaintiff damages in the principal sums of $24,662 for pastmedical expenses, $163,870 for past lost earnings, $1,892,300 for future lost earnings, and$330,000 for future medical expenses, and upon an order dated July 27, 2009, granting theirmotion pursuant to CPLR 4404 (a), among other things, to set aside the damages awards ascontrary to the weight of the evidence and excessive only to the extent of reducing the award forpast medical expenses to the principal sum of $16,000, the award for past lost earnings to theprincipal sum of $158,107, and the award for future lost earnings to the principal sum of$1,848,063, is in favor of the plaintiff and against them.
Ordered that the judgment is reversed, on the law, the facts, and in the exercise of discretion,with costs, that branch of the defendants' motion which was pursuant to CPLR 4404 (a) to setaside the damages awards for past and future lost earnings as excessive is granted to the furtherextent of reducing the award for past lost earnings from the principal sum of $163,870 to theprincipal sum of $118,209 and the award for future lost earnings from the principal sum of$1,892,300 to the principal sum of $1,324,610, the order dated July 27, 2009, is modifiedaccordingly, and the matter is remitted to the Supreme Court, Queens County, for the entry of anappropriate amended judgment.
On October 6, 2005, while working as a construction laborer in a warehouse, the plaintiff fell12 feet onto his back, fracturing a vertebra in his spine. He brought this action against thedefendants, the owners of the warehouse, asserting causes of action to recover damages fornegligence and pursuant to the Labor Law. The Supreme Court granted the plaintiff summaryjudgment on the issue of liability on his Labor Law § 240 (1) cause of action and,thereafter, a trial on the issue of damages was held. The jury awarded the plaintiff, inter alia,damages in the principal sums of $24,662 for past medical expenses, $163,870 for past lostearnings, $1,892,300 for future lost earnings, and $330,000 for future medical expenses. TheSupreme Court granted the defendants' motion pursuant to CPLR 4404 (a) to set aside the [*2]damages awards only to the extent of reducing the award for pastmedical expenses to the principal sum of $16,000, the award for past lost earnings to theprincipal sum of $158,107, and the award for future lost earnings to the principal sum of$1,848,063.
Contrary to the defendants' contention, the plaintiff's claims for past and future lost earningswere not barred by the federal Immigration Reform and Control Act of 1986 because theevidence did not establish that the plaintiff's employer was induced to hire him based on hissubmission of false documentation (seeMacedo v J.D. Posillico, Inc., 68 AD3d 508, 511 [2009]; Coque v Wildflower Estates Devs.,Inc., 58 AD3d 44, 52 [2008]).
Contrary to the plaintiff's contention, the defendants' contention that they were entitled tojudgment as a matter of law on the issue of the past and future lost earnings awards because theplaintiff failed to establish those claims with reasonable certainty is preserved for appellatereview. However, the contention is without merit.
Moreover, the jury's verdict that the plaintiff was entitled to lost earnings was not contrary tothe weight of the evidence. The jury could reasonably have concluded, based on the experttestimony presented at trial, that the plaintiff was totally disabled and that, therefore, theprojections of his earnings by his economist were properly based on an assumption that he wastotally disabled (cf. Harris v City ofNew York, 2 AD3d 782, 784 [2003]). However, we note that, as the defendantscorrectly contend, the plaintiff's economist erroneously projected the plaintiff's lost earningsbased on an annualization of his earnings for the year 2005. The record establishes that theplaintiff earned $25 per hour for the first half of 2005 and only $15 per hour subsequently, untilthe date of the accident. Since no evidence was adduced that the plaintiff would again haveearned $25 per hour, the economist's earnings projection was incorrect to the extent it was basedon that assumption. Accordingly, the awards for past and future lost earnings are excessive to theextent indicated.
There is no merit to the defendants' contention that the jury's award for future medicalexpenses should have been set aside because the testimony of one of the plaintiff's experts thatthe plaintiff would need future surgeries was unsupported by the record and, thus, speculative(see Maharam v Maharam, 235 AD2d 226 [1997]; cf. Jackson v Chetram, 300AD2d 446, 447 [2002]).
The parties' remaining contentions are either unpreserved for appellate review or withoutmerit. Rivera, J.P., Angiolillo, Roman and Sgroi, JJ., concur. [Prior Case History: 2009 NYSlip Op 31371(U).]