| Sacchetti v Giordano |
| 2012 NY Slip Op 08894 [101 AD3d 1619] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| Alessandro Sacchetti, Respondent, v Michael L. Giordano, DPM,Appellant. (Appeal No. 1.) |
—[*1] Pamela R. Halpin, East Rochester, for plaintiff-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (William P. Polito, J.),entered April 7, 2011. The judgment awarded plaintiff money damages upon a jury verdict.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained asa result of defendant's alleged podiatric malpractice. Following a trial, the jury found defendantliable for plaintiff's injuries and awarded damages to plaintiff. Defendant made a posttrial motionto set aside the jury's verdict on the ground that it is not supported by legally sufficient evidenceand to direct a verdict in his favor. In the alternative, defendant requested that a new trial begranted because, inter alia, the verdict is against the weight of the evidence. Supreme Courtproperly denied defendant's posttrial motion.
Contrary to defendant's contention, plaintiff established a prima facie case of podiatricmalpractice. Indeed, "there is a valid line of reasoning supporting the jury's verdict that defendantdeviated from the applicable standard of care . . . and that such deviation was aproximate cause of plaintiff's injuries" (Winiarski v Harris [appeal No. 2], 78 AD3d1556, 1557 [2010]; cf. James v Wormuth [appeal No. 2], 93 AD3d 1290, 1291 [2012]).We reject defendant's alternative contention in support of his posttrial motion that the verdict onliability is against the weight of the evidence. We conclude that the verdict "is one thatreasonable persons could have rendered after receiving conflicting evidence [and thus we] shouldnot substitute [our] judgment for that of the jury" (Herbst v Marshall, 89 AD3d 1403, 1403 [2011]).
Finally, contrary to defendant's contention, the jury awards for past and future lost wages aresupported by legally sufficient evidence and are not against the weight of the evidence. Whileplaintiff did not become a union electrician until after he was treated by defendant, " '[r]ecoveryfor lost earning capacity is not limited to a plaintiff's actual earnings before the [injury],. . . and the assessment of damages may instead be based upon future probabilities' "(Huff v Rodriguez, 45 AD3d1430, 1433 [2007]; see Kirschhoffer v Van Dyke, 173 AD2d 7, 10 [1991]).Present—Centra, J.P., Peradotto, Sconiers, Valentino and Martoche, JJ.