Velasco v. Green-Wood Cemetery

48 A.D.3d 271, 852 N.Y.S.2d 74

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 2008
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered November 14, 2006, which granted defendants’ motion for summary judgment dismissing plaintiff’s claim for future lost earnings, unanimously affirmed, without costs.

Plaintiff, who was previously granted summary judgment on the issue of defendants site owners’ liability under Labor Law § 240 (1) (8 AD3d 88 [2004]), failed to adduce evidence responsive to defendants’ showing, based on plaintiffs deposition, that plaintiff returned to the same type of work he was doing at the time of the accident only four months after the accident. While the determination of the Workers’ Compensation Board on which plaintiff relies found that he has a “permanent partial disability,” namely, “a 7.50% schedule loss of use of the Left Hand,” and awarded him benefits based on an average weekly wage of $400, the benefits ran for only the four-month period immediately following the accident, and there was no finding that plaintiff was unable to return to work. The expected testimony of a vocational rehabilitation expert and orthopedic surgeon, set forth in expert disclosure notices prepared by plaintiff’s attorney, is not “evidentiary proof in admissible form,” as required to defeat a meritorious motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Concur—Lippman, P.J., Tom, Buckley and Gonzalez, JJ.