| Berrios v 735 Ave. of the Ams., LLC |
| 2013 NY Slip Op 00999 [103 AD3d 472] |
| February 14, 2013 |
| Appellate Division, First Department |
| Eric Berrios, Appellant, v 735 Avenue of theAmericas, LLC, et al., Respondents. |
—[*1] McGaw, Alventosa & Zajac, Jericho (James K. O'Sullivan of counsel), forrespondents.
Judgment, Supreme Court, Bronx County (Stanley Green, J.), entered June 10, 2011,which, after a jury trial, inter alia, awarded plaintiff $375,000 for past pain and suffering,$225,000 for future pain and suffering for three years, $225,000 for past lost earnings,and $375,000 for future lost earnings for three years, unanimously affirmed, withoutcosts.
Plaintiff, who was injured when he fell off a scaffold in the course of hisemployment as a journeyman carpenter on a construction project, had an averagepre-accident salary of $76,000 per year. With the exception of a brief, part-time job, hehad not worked since the accident. Accordingly, the jury's award of $225,000 for pastlost earnings for five years was supported by a valid line of reasoning (see Cohen vHallmark Cards, 45 NY2d 493, 499 [1978]). Based upon the evidence presented attrial, the jury could have rationally concluded that plaintiff's injuries initiallyincapacitated him from employment, but that, as time progressed, he became more able towork, and calculated their award on that basis. Such an analysis does not involveimproper speculation into the jury's thoughts (compare Dessasore v New York City Hous. Auth., 70 AD3d440 [1st Dept 2010]). Additionally, based on the evidence presented at trial, theaward for future lost earnings is not inadequate.
The trial court did not commit reversible error in charging the jury as to plaintiff'sduty to mitigate damages by reasonably seeking and pursuing vocational rehabilitation(see Bell v Shopwell, Inc., 119 AD2d 715 [2d Dept 1986]). The charge givenwas supported by plaintiff's own physician, who testified that plaintiff was able to workin a sedentary or part-time position.
Plaintiff's hospital record was properly admitted as a business record (CPLR 4518[a]). As plaintiff concedes, the statement at issue regarding how he landed when he fellwas germane to his medical diagnosis or treatment. Its admission was therefore proper(see Williams v Alexander, 309 NY 283, 287 [1955]).
In the absence of any evidence regarding the frequency and nature of the change inplaintiff's contribution to household services and that plaintiff retained, or intended toretain, anyone to replace his contribution to household services, the Court properlyexcluded expert testimony as to the value of such loss (see Schultz v HarrisonRadiator Div. Gen. Motors Corp., 90 NY2d 311 [1997]).
Finally, without the benefit of the CPLR 3101 (d) exchange at issue, this Courtcannot [*2]determine whether the trial court abused itsdiscretion in allowing defendant's economist to testify as to the use of certain factors inanalyzing the claim for lost earnings.
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Friedman, Manzanet-Daniels, Román and Clark,JJ.