Outeiral v. Otis Elevator Inc.

220 A.D.2d 255, 632 N.Y.S.2d 73, 1995 N.Y. App. Div. LEXIS 10023

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1995
• Status: Published

Opinion

—Order, Supreme Court, New York County (Beverly Cohen, J.), entered on or about October 31, 1994, which, after setting aside a verdict insofar as it awarded plaintiff damages for past and future pain and suffering and directed a new trial on that issue unless plaintiff stipulated to a specified reduced award therefor, granted defendant-respondent’s motion to preclude plaintiff from offering evidence of his loss of future earnings at the new trial, and directed plaintiff to submit to a further independent medical evaluation prior to such new trial, unanimously affirmed, without costs.

Plaintiff had a full opportunity at the first trial to present proof of his future loss of earnings. He failed to do so, with the result that the trial court took the issue from the jury and decided it against plaintiff as a matter of law. The issue having been decided, and no appeal having been taken from the court’s subsequent order clearly directing a retrial on the issue of pain and suffering only, not damages in general, plaintiff is barred from relitigating loss of earnings. We have considered plaintiffs remaining arguments and find them to be without merit. Concur—Sullivan, J. P., Kupferman, Nardelli and Williams, JJ.