Vukovich v. 1345 Fee LLC
Opinion of the Court
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered September 1, 2009, which, after a jury verdict in plaintiffs favor, granted the motion by defendant ADCO Electrical to set aside the awards for past and future pain and suffering and lost earnings only to the extent of granting a new trial solely as to the future awards, unless plaintiff stipulated to a reduction of such damages from $1,661,000 to $1 million for future pain and suffering, and from $2,103,249 to $1 million for future loss of earnings, unanimously affirmed, without costs.
Elaintiff, who was 49 years old at the time of the accident and 53 when the trial took place, suffered head, neck and back injuries as the result of a fall from a ladder, precipitated by an electrical shock he received when the nape of his neck came into contact with live, uncapped electrical wires protruding from an open junction box. The measure of damages awarded for personal injury is primarily a question for the jury, which is entitled to great deference based on its evaluation of the evidence, including conflicting expert testimony. However, a court may review a jury’s award for pain and suffering to ascertain whether it deviates materially from what would be considered reasonable compensation under the circumstances (CELR 5501 [c]), and for lost earnings to determine if it was established with the requisite reasonable certainty (see Behrens v Metropolitan Opera Assn., Inc., 18 AD3d 47, 51 [2005]).
As to the award for future lost earnings, plaintiffs economist projected this claim by presuming plaintiff would work as a steamfitter 50 weeks a year for another 12 years, under the collective bargaining agreement negotiated by Local 638 of the Steamfitters Union, while ignoring the fact that plaintiff had actually been working, both before and after the accident, through Local 355 of the Services Workers Union, at wages substantially less than those available through Local 638. This economic analysis utilized the higher wages and benefits available from Local 638, applying a growth rate of 3.5% per year through plaintiffs anticipated retirement at age 65, and assumed that he would work 35 hours per week (1,750 hours each year), notwithstanding testimony from the vice-president of Local 638 that a steamfitter is lucky to work even 1,700 hours per year. This estimate, predicated on various assumptions that lacked any evidentiary support, was unduly inflated, and thus justified the court’s reduction of the jury’s award. Concur— Mazzarelli, J.P., Sweeny, Renwick, Freedman and Román, JJ.
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