| Margerum v City of Buffalo |
| 2013 NY Slip Op 05104 [108 AD3d 1021] |
| July 5, 2013 |
| Appellate Division, Fourth Department |
| Eugene Margerum et al., Respondents, v City of Buffalo etal., Appellants. |
—[*1] Chiacchia & Fleming, LLP, Hamburg (Christen Archer Pierrot of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.),entered February 8, 2012. The order, inter alia, awarded economic damages to 12 of theplaintiffs.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by reducing the total award for economic damages as follows: plaintiff EugeneMargerum—$288,445; plaintiff Joseph Fahey—$70,567; plaintiff TimothyHazelet—$211,054; plaintiff Peter Kertzie—$41,638; plaintiff PeterLotocki—$92,397; plaintiff Scott Skinner—$228,095; plaintiff ThomasReddington—$64,455; plaintiff Timothy Cassel—$282,819; plaintiffMatthew S. Osinski—$46,171; plaintiff Mark Abad—$0; plaintiff BradArnone—$0; and plaintiff David Denz—$40,966, and as modified the orderis affirmed without costs in accordance with the following memorandum: Plaintiffs,firefighters employed by defendant City of Buffalo Department of Fire (FireDepartment), commenced this action alleging that defendants discriminated against themby allowing promotional eligibility lists created pursuant to the Civil Service Law toexpire solely on the ground that plaintiffs, who were next in line for promotion, wereCaucasian. Previously, we concluded that Supreme Court erred in granting plaintiffs'cross motion for partial summary judgment on liability and properly denied defendants'motion to dismiss the complaint, holding in part that, although the action taken bydefendant City of Buffalo (City) was subject to strict scrutiny, plaintiffs had failed toestablish "the absence of a compelling interest," particularly because " 'a sufficientlyserious claim of discrimination' may constitute a compelling interest to engage inrace-conscious remedial action" (Margerum v City of Buffalo, 63 AD3d 1574, 1579 [2009]).Shortly after we issued our decision, the United States Supreme Court decided Ricciv DeStefano (557 US 557 [2009]), wherein it held that, "before an employer canengage in intentional discrimination for the asserted purpose of avoiding or remedying anunintentional disparate impact, the [*2]employer musthave a strong basis in evidence to believe it will be subject to disparate-impact liability ifit fails to take the race-conscious discriminatory action" (id. at 585).
Following Ricci, we affirmed an order that, inter alia, granted those parts ofplaintiffs' motion for partial summary judgment on liability with respect to the FireDepartment and the City (hereafter, defendants), determining that defendants "did nothave a strong basis in evidence to believe that they would be subject to disparate-impactliability if they failed to take the race-conscious action, i.e., allowing the eligibility liststo expire" (Margerum v City ofBuffalo, 83 AD3d 1575, 1576 [2011]). The court thereafter conducted a nonjurytrial on the issue of damages, and defendants appeal from an order that awarded a totalamount of $2,510,170 in economic damages and a total amount of $255,000 in emotionaldistress damages to the 12 remaining plaintiffs (hereafter, plaintiffs). We now concludethat the court's awards for emotional distress were proper, but we agree with defendantsthat the court erred with respect to its awards for economic damages.
Preliminarily, we conclude that the court did not err in determining that plaintiffsestablished that their damages were proximately caused by the City's failure to promotefrom the 2002 eligibility list. In our view, plaintiffs met their burden of establishing thatthey would have been promoted but for the City's action in allowing the promotioneligibility lists to expire and suffered economic damages because they were not promoted(see e.g. County of Nassau v New York State Div. of Human Rights, 123 AD2d342, 343 [1986]).
With respect to the amounts of damages, we note that, upon our review of the court'saward of damages in this nonjury trial, we may "independently consider the probativeweight of the evidence and the inferences that may be drawn therefrom, and grant the[relief] that we deem the facts warrant . . . This Court's authority, in thisregard, extends to the making of appropriate damage awards" (Walsh v State of NewYork, 232 AD2d 939, 940 [1996]; see Blakesley v State of New York, 289AD2d 979, 979 [2001], lv denied 98 NY2d 605 [2002]). We conclude that eachamount of damages awarded for emotional distress is reasonable. We further concludewith respect to economic damages, however, that the court applied the wrong burden ofproof and erred in relying on assumptions not supported by the record.
With respect to the burden of proof, we note that the court erred in placing theburden of proof on defendants to establish plaintiffs' economic damages. Rather, aplaintiff seeking, e.g., damages for loss of future earnings must "provide evidencedemonstrating the difference between what he [or she] is now able to earn and what he[or she] could have earned" in the absence of discrimination (Burdick v Bratt,203 AD2d 950, 951 [1994], lv denied 84 NY2d 801 [1994]), although recoveryfor lost earning capacity may be based on future probabilities and is not limited to actualpast earnings (see Huff vRodriguez, 45 AD3d 1430, 1433 [2007]). Although a plaintiff is not required toestablish loss of earnings with absolute certainty, it is a "fundamental premise that loss ofearnings or earning capacity must be established with reasonable certainty. . . and will be reduced if based upon mere speculation" (Toscarelli vPurdy, 217 AD2d 815, 818 [1995]). The parties each presented expert testimony onthe issue of economic damages, and the experts provided separate calculations for thoseplaintiffs who were on "injured on duty" (IOD) status. We conclude that the assumptionson which plaintiffs' expert relied are not fairly inferrable from the evidence, and thus hisopinion concerning the non-IOD plaintiffs, which was based on speculation about theirfuture job prospects, cannot support the awards made by the court. Instead, we concludethat the awards calculated by defendants' expert with respect to the nine non-IODplaintiffs are accurately inferrable from the evidence, and we therefore adopt hiscalculations, as follows: plaintiff Eugene Margerum—$288,445; plaintiff JosephFahey—$70,567; plaintiff Timothy Hazelet—$211,054; plaintiff PeterKertzie—$41,638; plaintiff Peter Lotocki—$92,397; plaintiff ScottSkinner—$228,095; plaintiff Thomas Reddington—$64,455; [*3]plaintiff Timothy Cassel—$282,819; and plaintiffMatthew S. Osinski—$46,171. We therefore modify the order accordingly.
Defendants also contend that the court erred in adopting the assumption of plaintiffs'expert that the IOD plaintiffs would have had an 85% chance of becoming permanentlydisabled, because he based his calculation on 12 months of injury reports rather than ondisability data, and particularly because his initial calculation, which he changed when herealized that the tax-free nature of the IOD plaintiffs' benefits would erase the IODplaintiffs' awards, assumed no likelihood of disability if the IOD plaintiffs had receivedpromotions in 2006. We conclude that the weighted probability calculation of plaintiffs'expert was not established with the requisite "reasonable certainty" (id.), and thatthe court instead should have used the weighted probability calculation of defendants'expert to determine the economic damages of the IOD plaintiffs. Notably, all three IODplaintiffs testified that they would not have been injured had they been promoted tolieutenant, and other plaintiffs testified that there was less probability of injury at higherranks. Defendants' expert, using 15 years of disability retirement data, calculated that therisk of retiring on IOD status as a lieutenant was only 58.6% as much as that of afirefighter, a probability higher than the original assumption of plaintiffs' expert andhigher than plaintiffs' testimonial probability, but consistent with plaintiffs' view thatthey would be much less likely to be injured as lieutenants. Because plaintiffs themselvestestified that they would not have been injured and retired on IOD status had they beenpromoted, because plaintiffs' expert initially agreed with that testimony and changed hiscalculation only when it became clear that the tax equalization of his calculations would"wipe out the [IOD plaintiffs'] loss," and because the recalculated weighted probability ofplaintiffs' expert relied only on injury data for a single year, not data relating to actualdisability retirements, we conclude that the IOD plaintiffs, through plaintiffs' own expert,did not establish their economic damages with reasonable certainty. Thus, the onlycompetent proof in the record regarding the economic damages to the IOD plaintiffs isthe calculation of defendants' expert, which awards no damages to plaintiffs Mark Abadand Brad Arnone and $40,966 to plaintiff David Denz. We therefore further modify theorder accordingly. Present—Scudder, P.J., Peradotto, Lindley, Valentino andMartoche, JJ.