NELSON v. 1683 UNICO (1998)

Order, Supreme Court, Bronx County (Frank Diaz, J.), entered October 11, 1996, which, in an a action for personal injuries, granted defendant's motion to set aside the jury's preapportionment damage award to plaintiff of past lost wages of $37,500, future lost wages of $690,000, past pain and suffering of $45,000, and future pain and suffering of $450,000, unless plaintiff stipulated to the elimination of any award for past and future lost wages, unanimously modified, on the facts, to grant the motion only to the extent of vacating the award of past and future lost wages, and remanding for a new trial on the issue of past and future lost wages only, and otherwise affirmed, without costs or disbursements, unless, within 30 days of the date of this order, plaintiff stipulates to a postapportionment reduction of the awards for past lost earnings to $12,931.41, and for future lost earnings to $95,346.52, in which event, the order, as modified by the stipulation, is affirmed, without costs or disbursements.

 We agree with the trial court that plaintiff's testimony of non-union jobs without supporting documentation failed to establish loss of any actual past earnings (see, Poturniak v. Rupcic, 232 A.D.2d 541, 648 N.Y.S.2d 668), but disagree that his proof of union jobs, which included documentation of the wages received by union workers at his pay scale, and of employment in the period immediately preceding the accident (see, Grinnell v. City of New York, 171 A.D.2d 244, 663 N.Y.S.2d 844), was similarly deficient.   Concerning past lost wages, plaintiff's 891.5 hours over 50 months averages to 214 hours a year, or 107 hours per six-month pay schedule pursuant to the wage chart.   Multiplying 107 hours by each of the respective hourly wages for fourth-year apprentices, and adding three extra months at the highest rate for July-September 1996, results in $15,213.42, which reduced by plaintiff's 15% liability results in $12,931.41.   Concerning future lost wages, at the most recent wage submitted, for 1996, 214 hours a year at $22.79 a hour results in $4877.06 a year, or a total of $112,172.38 for 23 years, which reduced by 15% results in $95,346.52.   The awards for past and future pain and suffering were properly upheld, as subsequent medical malpractice was a foreseeable consequence of defendant's negligence in not clearing debris off the stairwell on which plaintiff fell (see, Glaser v. Fortunoff of Westbury Corp., 71 N.Y.2d 643, 647, 529 N.Y.S.2d 59, 524 N.E.2d 413).

MEMORANDUM DECISION.