LG 55 DOE PLAINTIFF RESPONDENT v. JOSEPH GRASSO DEFENDANT APPELLANT APPEAL NO (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by setting aside the verdict with respect to damages for past and future medical expenses and as modified the judgment is affirmed without costs, and a new trial is granted on damages for past and future medical expenses only unless plaintiff, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to reduce the award of damages for past medical expenses to $37,776 and for future medical expenses to $0, in which event the judgment is modified accordingly and as modified the judgment is affirmed without costs in accordance with the following memorandum: Plaintiff commenced this personal injury action pursuant to the Child Victims Act (see CPLR 214-g) alleging that he was sexually abused by defendant, a school principal and priest. The case proceeded to trial, and the jury returned a verdict in favor of plaintiff, awarding him $2,000,000 for past pain and suffering, $50,000 for future pain and suffering over 20 years, $50,000 for past medical expenses, $10,000 for future medical expenses over 20 years, $275,000 in lost earnings from 2014 to the date of the verdict, $65,000 for lost future earnings for two years, and $3,000,000 in punitive damages. Plaintiff filed a motion to correct the verdict with respect to the award of damages for plaintiff's future pain and suffering and future medical expenses. Defendant moved to set aside the verdict and for a new trial or, in the alternative, to set aside certain portions of the verdict.

Supreme Court granted plaintiff's posttrial motion and denied defendant's posttrial motion. The court corrected the verdict and awarded plaintiff $1,000,000 for future pain and suffering and $200,000 for future medical expenses. A judgment was then entered against defendant. In appeal No. 1, defendant appeals from the order determining the posttrial motions. In appeal No. 2, defendant appeals from the judgment.

As a preliminary matter, we note that the order in appeal No. 1 is subsumed in the final judgment in appeal No. 2 and thus the appeal from the order in appeal No. 1 must be dismissed (see Viglietta v Asbestos Corp. Ltd., 227 AD3d 1515, 1515-1516 [4th Dept 2024], lv denied 43 NY3d 903 [2025]; LPCiminelli, Inc. v JPW Structural Contr., Inc., 217 AD3d 1380, 1380-1381 [4th Dept 2023]; see generally Matter of Aho, 39 NY2d 241, 248 [1976]). The appeal from the judgment in appeal No. 2 brings up for review the propriety of the order in appeal No. 1 (see generally CPLR 5501 [a] [1], [2]; Aho, 39 NY2d at 248).

Defendant failed to preserve for our review his contention that the court abused its discretion in denying his pretrial motion to bifurcate the trial with respect to the issues of liability and damages and his contention that the court abused its discretion in denying his pretrial motion to allow his expert witness to testify remotely, inasmuch as defendant did not raise to the trial court the specific arguments, with respect to each contention, that he now raises on appeal (see Sabine v State of New York, 43 NY3d 1015, 1017 [2024]; Henry v New Jersey Tr. Corp., 39 NY3d 361, 367 [2023]; Matter of Haines, 156 AD3d 1471, 1472 [4th Dept 2017]). We decline to address defendant's contentions in the interest of justice (see generally Sabine, 43 NY3d at 1017).

We reject defendant's contention that the court erred in permitting the jury to determine liability for, and the amount of, punitive damages at the same time. Here, in light of defendant's testimony at trial, we conclude that a “split trial procedure” was unnecessary (Rupert v Sellers, 48 AD2d 265, 272 [4th Dept 1975]; see 1B NY PJI3d 2:278, at 1029-1030, 1048-1049 [2026]).

We further reject defendant's contention that the evidence is legally insufficient to support the jury's award with respect to plaintiff's past and future lost earnings. “It is axiomatic that loss of earnings must be established with reasonable certainty ․ and the initial burden of proving lost wages is on the [plaintiff] ․ Recovery for lost earning capacity is not limited to a plaintiff's actual earnings before the accident, however, and the assessment of damages may instead be based upon future probabilities” (Huff v Rodriguez, 45 AD3d 1430, 1433 [4th Dept 2007] [internal quotation marks omitted]). At trial, plaintiff presented evidence of his difficulties during past employment and evidence to support his claim that he was unable to work as a result of defendant's sexual abuse against him. In light of this evidence, we conclude that a valid line of reasoning and permissible inferences support the jury's conclusion that plaintiff was entitled to recover damages for past and future lost earnings (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).

Defendant contends that the court erred in allowing plaintiff's expert economist to testify because the expert's testimony lacked a proper foundation. We reject that contention. “It is well settled that ‘[t]rial courts are accorded wide discretion in making evidentiary rulings ․ [and that,] absent an abuse of discretion, those rulings should not be disturbed on appeal’ ” (Held v Cheektowaga-Sloan Union Free Sch. Dist. [appeal No. 3], 240 AD3d 1369, 1370 [4th Dept 2025]). Here, there was no abuse of discretion in allowing the expert economist to testify inasmuch as plaintiff testified as to his inability to work, his past employment, and his educational background, and plaintiff presented evidence that the sexual abuse prevented him from working in the future (see generally Mroz v 3M Co. [appeal No. 2], 151 AD3d 1606, 1607-1608 [4th Dept 2017]). With respect to defendant's related contention that the expert economist's report should not have been admitted in evidence, assuming, arguendo, that the court improperly admitted the report, we conclude that such error was harmless inasmuch as “the result reached herein would have been the same even had [the report], or portions thereof, been excluded” (Matter of Meyah F. [Shelby L.], 203 AD3d 1558, 1560 [4th Dept 2022] [internal quotation marks omitted]).

Defendant further contends that the court erred in increasing the jury award because that constituted an impeachment of the jury's verdict. We also reject that contention. Here, we conclude that the information provided by the juror affidavits, wherein the jurors confirmed their intent to make annual awards, not lump sum awards, with respect to future pain and suffering and future medical expenses, was not to impeach the verdict but to correct the verdict (see Butterfield v Caputo, 108 AD3d 1162, 1164 [4th Dept 2013]). “[W]here [, as here,] there has been an honest mistake which, if not corrected, would prevent the findings of the jury as it actually was from being carried out, the correction of the verdict by the court [is] not an impeachment of the verdict by the jurors” (id. [internal quotation marks omitted]).

We agree, however, with defendant that the award of damages for past and future medical expenses was based in part on “uninformed speculation” (Strangio v New York Power Auth. [appeal No. 2], 275 AD2d 945, 946 [4th Dept 2000] [internal quotation marks omitted]). Plaintiff presented evidence of past medical expenses of $37,776 and evidence that such expenses were incurred due to defendant's actions. Plaintiff, however, failed to establish with the requisite reasonable certainty the value of any future medical expenses that he would require (see generally Huff, 45 AD3d at 1433; Strangio, 275 AD2d at 946). Thus, we modify the judgment by setting aside the verdict with respect to damages for past and future medical expenses, and we grant a new trial on damages for past and future medical expenses only unless plaintiff, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to reduce the award of

damages for past medical expenses to $37,776 and for future medical expenses to $0, in which event the judgment is modified accordingly.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court