BEH v. JIM WILLIS SONS BUILDERS INC

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Supreme Court, Appellate Division, Fourth Department, New York.

William BEH, Plaintiff-Respondent-Appellant, v. JIM WILLIS & SONS BUILDERS, INC., Defendant-Appellant-Respondent.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., SCUDDER, KEHOE, PINE, AND HAYES, JJ. Kenney, Shelton, Liptak & Nowak, L.L.P., Buffalo (Nelson E. Schule, Jr., of Counsel), for Defendant-Appellant-Respondent. Rinere & Rinere, L.L.P., Rochester (Joseph D. Rinere of Counsel), for Plaintiff-Respondent-Appellant.

 In this action seeking damages for injuries sustained by plaintiff in a construction accident, defendant appeals and plaintiff cross-appeals from a judgment awarding plaintiff $349,425 in damages, including $91,200 for past pain and suffering, $59,610 for past loss of wages “including past fringe benefits,” $55,600 for future pain and suffering, $90,000 for future loss of wages, $6,615 for future loss of fringe benefits, and $46,400 for loss of future health care-related expenses.   Contrary to defendant's contention, plaintiff established his loss of earning capacity with the requisite reasonable certainty by the competent testimony of his expert witnesses, i.e., a vocational rehabilitation specialist and an economist (see Hoerner v. Chrysler Fin. Co., 21 A.D.3d 1254, 1256, 802 N.Y.S.2d 583;   Patterson v. Kummer Dev. Corp., 302 A.D.2d 873, 874-875, 755 N.Y.S.2d 180;   Kirschhoffer v. Van Dyke, 173 A.D.2d 7, 10, 577 N.Y.S.2d 512).  “Recovery for lost earning capacity is not limited to a plaintiff's actual earnings before the accident, ․ and the assessment of damages may instead be based upon future probabilities” (Kirschhoffer, 173 A.D.2d at 10, 577 N.Y.S.2d 512).   Similarly, we conclude that plaintiff established his future medical expenses with the requisite reasonable certainty (see Patterson, 302 A.D.2d at 875, 755 N.Y.S.2d 180;  cf. Hersh v. Przydatek [Appeal No. 2], 286 A.D.2d 984, 985, 730 N.Y.S.2d 916;  Strangio v. New York Power Auth. [Appeal No. 2], 275 A.D.2d 945, 946-947, 713 N.Y.S.2d 613).

 We conclude, however, that the award of $55,600 for future pain and suffering over plaintiff's remaining life expectancy of 20 years deviates materially from what would be reasonable compensation (see CPLR 5501[c];  Elescano v. Eighth-19th Co., 17 A.D.3d 250, 794 N.Y.S.2d 316;  see also Wojeski v. Del Favero, 17 A.D.3d 1024, 1026, 794 N.Y.S.2d 534;  see generally Countermine v. Galka, 189 A.D.2d 1043, 1045-1046, 593 N.Y.S.2d 113).   In our view, an award of $150,000 would be reasonable compensation for plaintiff's future pain and suffering (see generally Wojeski, 17 A.D.3d at 1026, 794 N.Y.S.2d 534).   We modify the judgment accordingly, and we grant a new trial on damages for future pain and suffering only unless defendant, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to increase the award of damages for future pain and suffering to $150,000, in which event the judgment is modified accordingly.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by granting the cross motion and setting aside the award of damages for future pain and suffering and as modified the judgment is affirmed without costs, and a new trial is granted on that element of damages only unless defendant, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to increase the award of damages for future pain and suffering to $150,000, in which event the judgment is modified accordingly and as modified the judgment is affirmed without costs.

MEMORANDUM: