DeVIRGILIO v. Mamma Mia Broadway Limited Partners, Defendant-Appellant. (2008)

Judgment, Supreme Court, New York County (Marcy Friedman, J.), entered January 2, 2007, upon a jury verdict, which, to the extent appealed from as limited by the briefs, awarded plaintiff $1 million for future pain and suffering and $500,000 for future lost earnings, unanimously modified, on the law, to vacate the award for future lost earnings, and otherwise affirmed, without costs.

 The then 25-year-old plaintiff, while working as a stagehand, was injured when a “Genie lift” tipped over and fell on her, causing her to sustain a crush fracture to her pelvis and fibula, a fractured sacrum, and rib fractures.   The evidence demonstrated that she still suffered from pain, for which she took painkillers up to five times a week, that she had an increased risk of degenerative disease in her spine, as well as an increased risk of arthritis, and that she suffered and would continue to suffer from post-traumatic stress disorder.   The jury found that plaintiff's pain and suffering would continue for 53 years.   The jury's award of $1 million for future pain and suffering does not deviate materially from what would be reasonable compensation under the circumstances.

 However, plaintiff failed to sustain her burden of establishing loss of wages with reasonable certainty (see Man-Kit Lei v. City Univ. of N.Y., 33 A.D.3d 467, 468, 823 N.Y.S.2d 129 [2006], lv. denied 8 N.Y.3d 806, 832 N.Y.S.2d 488, 864 N.E.2d 618 [2007] ).   She testified that she had returned to the job she held before the accident, at the same rate of pay.   Further, the only evidence of future lost earnings was plaintiff's own unsubstantiated opinion concerning her potential income as a substitute stagehand (see Harris v. City of New York, 2 A.D.3d 782, 783-784, 770 N.Y.S.2d 380 [2003], lv. dismissed 2 N.Y.3d 758, 778 N.Y.S.2d 773, 811 N.E.2d 35 [2004] ).

We have considered and rejected defendant's remaining contentions.