SHI PEI FANG v. (and a third-party action). (2007)

In an action to recover damages for personal injuries, the defendant Heng Sang Realty Corporation appeals from a judgment of the Supreme Court, Queens County (Hollie, J.), dated January 27, 2005, which, upon a jury verdict awarding the plaintiff, inter alia, the principal sums of $122,640 for past loss of earnings, $220,000 for future loss of earnings over a period of 12 years, $750,000 for past pain and suffering, and $1,250,000 for future pain and suffering, and upon an order of the same court dated June 6, 2003, which, inter alia, granted that branch of the motion of the defendant Heng Sang Realty Corporation which was, in effect, for a new trial on the issue of damages for past pain and suffering and future pain and suffering unless the plaintiff stipulated to reduce the verdict for damages for past pain and suffering to the principal sum of $300,000 and for future pain and suffering to the principal sum of $750,000, is in favor of the plaintiff and against it.

ORDERED that the judgment is affirmed, with costs.

 “Whether or not expert testimony is admissible on a particular point is a mixed question of law and fact addressed primarily to the discretion of the trial court.   As a general rule the expert should be permitted to offer an opinion on an issue which involves a ‘professional or scientific knowledge or skill not within the range of ordinary training or intelligence’ ” (Selkowitz v. County of Nassau, 45 N.Y.2d 97, 101-102, 408 N.Y.S.2d 10, 379 N.E.2d 1140, citing Dougherty v. Milliken, 163 N.Y. 527, 533, 57 N.E. 757).  “The opinion testimony of an expert must be based on facts in the record or personally known to the witness” (Quinn v. Artcraft Constr., 203 A.D.2d 444, 445, 610 N.Y.S.2d 598, citing Cassano v. Hagstrom, 5 N.Y.2d 643, 646, 187 N.Y.S.2d 1, 159 N.E.2d 348).  “An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion” (id.).   Contrary to the contention of the defendant Heng Sang Realty Corporation, the testimony of the plaintiff's expert was based on facts in the record and his own analysis, not speculation.

 “A jury verdict should not be set aside as against the weight of the evidence unless the jury could not have reached its verdict on any fair interpretation of the evidence [citation omitted].   Great deference is accorded to the fact-finding function of the jury, and determinations regarding the credibility of witnesses are for the fact-finders, who had the opportunity to see and hear the witnesses [citation omitted]” (Kinney v. Taylor, 305 A.D.2d 466, 467, 758 N.Y.S.2d 840;  see Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184).   In the instant case, the jury verdict regarding liability was based on a fair interpretation of the evidence.

 Under the circumstances of this case, the damages awarded to the plaintiff, as reduced by the Supreme Court and upon stipulation of the plaintiff, did not deviate materially from what would be reasonable compensation (see CPLR 5501[c];  Keefe v. E & D Specialty Stands, 272 A.D.2d 949, 708 N.Y.S.2d 214;  Van Deusen v. Norton Co., 204 A.D.2d 867, 612 N.Y.S.2d 464;  Villa v. City of New York, 148 A.D.2d 699, 539 N.Y.S.2d 446).

 The defendant's argument that the plaintiff should not be permitted to recover lost wages because of his status as an illegal alien is without merit (see Balbuena v. IDR Realty LLC, 6 N.Y.3d 338, 358, 812 N.Y.S.2d 416, 845 N.E.2d 1246).   Moreover, the verdict regarding lost wages was supported by sufficient evidence (see Majlinger v Cassino Contr. Corp., 25 A.D.3d 14, 30, 802 N.Y.S.2d 56, affd. sub nom. Balbuena v. IDR Realty LLC, supra;   Hernandez v. M/V Rajaan, 848 F.2d 498, 500).