GRASSI v. CAROLINA BARBEQUE INC (1998)

Judgment, Supreme Court, New York County (Louise Gruner Gans, J.), entered December 10, 1997, which, upon a jury verdict reduced pursuant to plaintiff's stipulation, awarded plaintiff damages structured pursuant to CPLR 5041(e), unanimously affirmed, with costs.   Appeal from order, same court and Justice, entered July 14, 1997, which denied defendant's motion to set aside the verdict except to the extent of ordering a new trial unless plaintiff stipulated to a reduction of the award for future lost earnings from $412,500 to $160,600 and a reduction of the award for future pain and suffering from $700,000 to $510,000, unanimously dismissed, without costs, as subsumed in the appeal from the ensuing judgment.

 Exclusion of evidence concededly not in compliance with the notice requirement of 22 NYCRR § 202.17 was not an improvident exercise of the trial court's discretion (see, McClain v. Lockport Mem. Hosp., 236 A.D.2d 864, 865, 653 N.Y.S.2d 774, lv. denied 89 N.Y.2d 817, 659 N.Y.S.2d 857, 681 N.E.2d 1304), and exclusion of conceded hearsay was appropriate, despite CPLR 4532-a, since defendant admittedly did not afford plaintiff the required notice (see, Adams v. Romero, 227 A.D.2d 292, 293, 642 N.Y.S.2d 673).   The trial court appropriately found the issue of security in defendant's bar to warrant the receipt of expert testimony (see, e.g., Ricard v. Roseland Amusement & Dev. Corp., 215 A.D.2d 240, 241, 626 N.Y.S.2d 186, appeal dismissed 86 N.Y.2d 837, 634 N.Y.S.2d 444, 658 N.E.2d 222, lv. denied 87 N.Y.2d 805, 640 N.Y.S.2d 877, 663 N.E.2d 919), and appropriately declined to charge on implied assumption of the risk, since the evidence showed that plaintiff had not engaged in the conduct at issue fully cognizant of the risk it entailed (cf., Fernandez v. City of New York, 247 A.D.2d 212, 669 N.Y.S.2d 20).   The awards for future lost income and future pain and suffering, as reduced on motion by the trial court, are appropriate.   We have considered appellant's remaining arguments and those made by plaintiff in favor of additur, and find them to be without merit.

MEMORANDUM DECISION.