Ferrarese v. USAA Casualty Insurance

Appellate Division of the Supreme Court of New York

Ferrarese v. USAA Casualty Insurance

293 A.D.2d 709, 741 N.Y.S.2d 422, 2002 N.Y. App. Div. LEXIS 4131

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 29, 2002

StatusPublished

This text of 293 A.D.2d 709 (Ferrarese v. USAA Casualty Insurance) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ferrarese v. USAA Casualty Insurance, 293 A.D.2d 709, 741 N.Y.S.2d 422, 2002 N.Y. App. Div. LEXIS 4131 (N.Y. Ct. App. 2002).

Pincite

Opinion

In an action to recover damages for breach of an insurance contract, the plaintiff appeals from a judgment of the Supreme Court, Richmond County (Lebowitz, J.), entered March 26, 2001, which, upon the granting of the defendant’s motion to dismiss the complaint for failure to establish a prima facie case made at the close of the plaintiffs evidence, is in favor of the defendant and against him.

[710]*710Ordered that the judgment is affirmed, with costs.

Contrary to the plaintiffs contention, it was incumbent upon him, in this action to recover damages for breach of an insurance contract, to prove his lost earnings with reasonable certainty in establishing the damages element of his prima facie case (see Lloyd v Town of Wheatfield, 67 NY2d 809; Wenger v Alidad, 265 AD2d 322; Haven v Donro Realty Corp., 121 AD2d 504). Since the plaintiff did not introduce any evidence at trial to verify his 1989 income, the Supreme Court properly dismissed his complaint at the conclusion of his case.

Additionally, without determining whether the court’s preclusion of the testimony of two of the plaintiffs witnesses was proper, any error was harmless because these witnesses, a claims adjuster and his supervisor, would not have been able to remedy the gap in the plaintiffs prima facie case (see CPLR 2002; Wolosin v Campo, 256 AD2d 332; Cave v Foley, 234 AD2d 410; Cotter v Mercedes-Benz Manhattan, 108 AD2d 173). Florio, J.P., Smith, Krausman and Townes, JJ., concur.

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In an action to recover damages for breach of an insurance contract, the plaintiff appeals from a judgment of the Supreme Court, Richmond County (Lebowitz, J.), entered March 26, 2001, which, upon the granting of the defendant’s motion to dismiss the complaint for failure to establish a prima facie case made at the close of the plaintiffs evidence, is in favor of the defendant and against him.

[710]*710Ordered that the judgment is affirmed, with costs.

Contrary to the plaintiffs contention, it was incumbent upon him, in this action to recover damages for breach of an insurance contract, to prove his lost earnings with reasonable certainty in establishing the damages element of his prima facie case (see Lloyd v Town of Wheatfield, 67 NY2d 809; Wenger v Alidad, 265 AD2d 322; Haven v Donro Realty Corp., 121 AD2d 504). Since the plaintiff did not introduce any evidence at trial to verify his 1989 income, the Supreme Court properly dismissed his complaint at the conclusion of his case.

Additionally, without determining whether the court’s preclusion of the testimony of two of the plaintiffs witnesses was proper, any error was harmless because these witnesses, a claims adjuster and his supervisor, would not have been able to remedy the gap in the plaintiffs prima facie case (see CPLR 2002; Wolosin v Campo, 256 AD2d 332; Cave v Foley, 234 AD2d 410; Cotter v Mercedes-Benz Manhattan, 108 AD2d 173). Florio, J.P., Smith, Krausman and Townes, JJ., concur.

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Bluebook (online)

293 A.D.2d 709, 741 N.Y.S.2d 422, 2002 N.Y. App. Div. LEXIS 4131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferrarese-v-usaa-casualty-insurance-nyappdiv-2002.

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