| Smith v Bywise Holding, LLC |
| 2013 NY Slip Op 03473 [106 AD3d 902] |
| May 15, 2013 |
| Appellate Division, Second Department |
| Robert Smith, Appellant, v Bywise Holding, LLC,Respondent, et al., Defendant. |
—[*1] White Fleischner & Fino LLP, New York, N.Y. (Jason S. Steinberg of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Ruchelsman, J.), dated December 15, 2011,which denied his motion pursuant to CPLR 4404 (a) to set aside a verdict on the issue ofdamages awarding him the sums of only $17,000 for past lost earnings and only $5,000for future lost earnings over 10 years, inter alia, as contrary to the weight of the evidenceand inadequate.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries after heslipped and fell on a sidewalk maintained by the defendant Bywise Holding, LLC(hereinafter Bywise). After a jury trial on the issue of damages for past and future loss ofearnings, the jury awarded the plaintiff the sums of $17,000 for past lost earnings and$5,000 for future lost earnings over 10 years.
The Supreme Court properly denied the plaintiff's motion pursuant to CPLR 4404 (a)to set aside the verdict. Moreover, the jury's award was not contrary to the weight of theevidence, and did not deviate materially from what would be reasonable compensation(see CPLR 5501 [c]; Guallpa v Key Fat Corp., 98 AD3d 650, 651 [2012];Nicastro v Park, 113 AD2d 129, 134 [1985]). Contrary to the plaintiff'scontention, the Supreme Court properly denied his request for a missing-witness charge,as Bywise demonstrated that the witness would not testify as to any matter that was indispute (see Lauro v City ofNew York, 67 AD3d 744, 746 [2009]; Hanlon v Campisi, 49 AD3d 603, 604 [2008]). The jurycould reasonably have concluded that it was the plaintiff's poor employment record,which included several disciplinary infractions, that led to his departure from hisprevious employment, rather than his inability, due to the subject accident, to physicallyperform the functions required by his previous employment. Mastro, J.P., Hall, Lott andSgroi, JJ., concur.