RAMIREZ v. CITY OF NEW YORK (2001)

In an action to recover damages for personal injuries, the defendant, the City of New York, appeals from a judgment of the Supreme Court, Kings County (Vaughan, J.), dated October 12, 1999, which, upon a jury verdict awarding the plaintiff the principal sum of $200,000 for past pain and suffering and $500,000 for future pain and suffering, is in favor of the plaintiff and against it, and the plaintiff, Rene Ramirez, cross-appeals, as limited by his brief, from so much of the same judgment as failed to award him damages for lost earnings.

ORDERED that the judgment is affirmed, without costs or disbursements.

 The uncontroverted evidence established that the plaintiff sustained permanent brain damage as a result of an assault upon him by police officers.   The damages award for past and future pain and suffering does not deviate materially from what would be reasonable compensation under the circumstances (see, CPLR 5501[c];  Regis v. City of New York, 269 A.D.2d 515, 703 N.Y.S.2d 735).

 The court properly dismissed the plaintiff's claim for lost earnings.   The plaintiff testified that he worked occasionally as a security guard and was paid “off the books”.   He further testified that at the time of the assault, he was unemployed and receiving “social security” benefits.   This evidence is insufficient to sustain a lost earnings claim (see, Gomez v. City of New York, 260 A.D.2d 598, 688 N.Y.S.2d 661;  Papa v. City of New York, 194 A.D.2d 527, 598 N.Y.S.2d 558;  Bailey v. Jamaica Buses Co., 210 A.D.2d 192, 620 N.Y.S.2d 257).