MARZANO v. YSF REALTY CORP (2006)

Appeal, upon the grounds of inadequacy, from a judgment of the Civil Court of the City of New York, Kings County (Debra Silber, J.), entered February 19, 2004.   The judgment, awarding plaintiff the sum of $92,134, was entered upon a jury verdict, as reduced by order of the same court, entered October 31, 2003, which granted defendant's motion to set aside so much of the verdict as awarded plaintiff past loss of overtime wages.

Judgment modified by increasing the award in favor of plaintiff to the sum of $249,634;  as so modified, affirmed without costs.

In this negligence action to recover damages for personal injuries, transferred to the Civil Court pursuant to CPLR 325(d), the jury awarded plaintiff the sum of $330,000.   The Civil Court granted defendant's motion pursuant to CPLR 4404(a) to set aside so much of the jury verdict as found that plaintiff lost overtime wages of $210,000.   Judgment was thereafter entered in favor of plaintiff in the sum of $92,134 ($90,000 together with $2,134 costs and disbursements), which sum reflects the jury's finding that plaintiff was 25% comparatively negligent.   Plaintiff appeals from said judgment and contends that the court erred in setting aside the jury's award for past loss of overtime wages.

 “[T]he standard for determining whether a jury verdict is against the weight of the evidence is whether the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence' (Torres v. Esaian, 5 A.D.3d 670, 671 [773 N.Y.S.2d 453] [2004];  see generally Schiskie v. Fernan, 277 A.D.2d 441 [716 N.Y.S.2d 702] [2000];  Nicastro v. Park, 113 A.D.2d 129 [495 N.Y.S.2d 184] [1985] )” (Harris v. Marlow, 18 A.D.3d 608, 610, 795 N.Y.S.2d 608 [2005] ).   After reviewing the record and applying the aforementioned standard to the case at hand, we are of the opinion that the evidence adduced at trial, including plaintiff's W-2 forms, pay stubs and the testimony of an economist, established plaintiff's past loss of overtime earnings with reasonable certainty (see Karwacki v. Astoria Med. Anesthesia Assoc., P.C., 23 A.D.3d 438, 808 N.Y.S.2d 123 [2005];  Sdregas v. City of New York, 309 A.D.2d 612, 765 N.Y.S.2d 610 [2003];  Poturniak v. Rupcic, 232 A.D.2d 541, 648 N.Y.S.2d 668 [1996] ).   Therefore, the jury's award of $210,000 to plaintiff for past loss of overtime earnings was not speculative (cf. Walsh v. State of New York, 232 A.D.2d 939, 648 N.Y.S.2d 816 [1996] ) and the lower court improperly set it aside.   Accordingly, the judgment is modified by increasing the award in favor of plaintiff to the sum of $249,634 ($92,134 plus $157,500 [75% of $210,000] ).

In my view, plaintiff failed to submit sufficient proof to support an award for lost overtime earnings.   As a general rule, future lost earnings, including lost overtime, “must be established with reasonable certainty, based on evidence of the plaintiff's earning ability both before and after [his] injuries” (Thomas v. Puccio, 270 A.D.2d 480, 480, 704 N.Y.S.2d 666 [2000];  see also Morgan v. Rosselli, 23 A.D.3d 356, 357, 804 N.Y.S.2d 763 [2005];  Walsh v. State of New York, 232 A.D.2d 939, 940-941, 648 N.Y.S.2d 816 [1996] ).   Contrary to the opinion of the Court below, whether such losses should be attributed to plaintiff's employer, rather than the homeowner, is irrelevant, since liability has already been established against the homeowner.

In this case, plaintiff's lost overtime earnings have not been proven with reasonable certainty.   Although plaintiff submitted proof of his overtime earnings both before and after the accident, he fails to explain how his injuries from two subsequent, unrelated incidents did not affect his overtime earnings ability.   Moreover, the record reveals that following his injury in 1998, plaintiff earned approximately $20,000 annually in overtime, undermining any claim that his overtime had been restricted.   Indeed, except for 1995 and 1996, plaintiff's overtime earnings prior to the accident were substantially the same as those following the accident.   Under these circumstances, plaintiff's award for lost overtime is speculative and cannot be sustained.   Therefore, the lower court properly granted defendant's motion pursuant to CPLR 4404(a) to set aside so much of the jury verdict as found that plaintiff lost overtime wages of $210,000.

Accordingly, I would vote to affirm the judgment.

GOLIA and BELEN, JJ., concur. WESTON PATTERSON, J.P., dissents in a separate memorandum.