Opinion
April 26, 1999
Appeal from the Supreme Court, Kings County (Bernstein, J.).
Ordered that the order is modified, on the facts and as an exercise of discretion, by deleting the provision thereof which ordered a new trial on the issue of damages for past and future pain and suffering unless the plaintiff stipulates to reduce the award for past pain and suffering to $100,000 and for future pain and suffering to $25,000, and substituting therefore a provision ordering a new trial on the issue of damages unless the plaintiff stipulates, within 30 days after service upon him of a copy of this decision and order, with notice of entry, to reduce the award for past pain and suffering to $200,000 and for future pain and suffering to $100,000; as so modified, the order is affirmed, with costs to the appellant.
The plaintiff did not meet his burden in establishing his past lost earnings with reasonable certainty ( see, Bacigalupo v. Healthshield, Inc., 231 A.D.2d 538; Calo v. Perez, 211 A.D.2d 607, 608; Papa v. City of New York, 194 A.D.2d 527, 531). The plaintiff submitted only conclusory, unsubstantiated testimony and submitted no pertinent documentary evidence ( see, Bailey v. Jamaica Buses Co., 210 A.D.2d 192; Papa v. City of New York, supra). Accordingly, he is not entitled, as a matter of law, to recover damages for past lost earnings.
The jury awards of $1,000,000 for past pain and suffering, and $500,000 for future pain and suffering, as reduced by the trial court to $100,000 and $25,000 respectively, deviated materially from what would be reasonable compensation ( see, CPLR 5501 [c]), and should be increased to the extent indicated herein.
S. Miller, J. P., O'Brien, Ritter and Santucci, JJ., concur.