Smith v. Temco Services Industries

267 A.D.2d 176, 700 N.Y.S.2d 813, 1999 N.Y. App. Div. LEXIS 13393

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 1999
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Janice Bowman, J.), entered October 9, 1998, which granted defendant’s motion to set aside the verdict and for judgment in its favor as a matter of law to the extent of directing a new trial solely on the issue of damages for past and future pain and suffering unless plaintiff stipulated to reduce the jury’s award for past pain and suffering from $500,000 to $57,000 and for future pain and suffering from $1.5 million to $100,000, and bringing up for review a trial ruling dismissing plaintiff’s claim for lost earnings, unanimously modified, on the facts, to the extent of directing a new trial on the issue of damages for past and future pain and suffering, and otherwise affirmed, without costs, unless plaintiff stipulates, within 30 days of the date of this order, to a reduction of the jury award for past pain and suffering to $300,000 and for future pain and suffering to $700,000 and to entry of a judgment in accordance therewith.

Upon review of the record, we find the trial court’s reduction of the jury verdict to have been too substantial in light of the injuries suffered by plaintiff and we modify accordingly (see, CPLR 5501 [c]).

The trial court properly refused to submit plaintiff’s lost earnings claim to the jury in the absence of any documentation of her salary history (see, Papa v City of New York, 194 AD2d 527, lv dismissed and denied 82 NY2d 918). We have considered defendant’s arguments on its cross appeal, including that the testimony of plaintiffs accident specialist was speculative, and find them unavailing. Concur — Tom, J. P., Wallach, Lerner, Saxe and Buckley, JJ.