Summary
holding burden of establishing damages for lost earnings falls on plaintiff
Summary of this case from Scott v. John Doe CorporationOpinion
Argued September 15, 2000.
October 16, 2000.
In an action to recover damages for personal injuries, the defendant appeals from an amended judgment of the Supreme Court, Kings County (Douglass, J.), entered July 30, 1999, which, after a nonjury trial finding that the defendant was 100% at fault in the happening of the accident, and that the plaintiff had sustained damages in the sum of $150,000 for past pain and suffering, $25,000 for future pain and suffering, $25,000 for past loss of earnings, and $10,000 for past medical expenses, is in favor of the plaintiff and against him in the principal sum of $210,000.
Joel Michaels (Steve S. Efron, New York, N.Y., of counsel), for appellant.
S. Hal Mercer IV, Brooklyn, N.Y., for respondent.
Before: FRED T. SANTUCCI, J.P., THOMAS R. SULLIVAN, LEO F. McGINITY, DANIEL F. LUCIANO, JJ.
DECISION ORDER
ORDERED that the amended judgment is modified, on the law and the facts, by (1) deleting the provision thereof awarding the plaintiff damages for past lost earnings and substituting therefor a provision dismissing the demand for such relief, (2) deleting the provisions thereof awarding the plaintiff damages in the sum of $150,000 for past pain and suffering, $25,000 for future pain and suffering, and $10,000 for past medical expenses, and substituting therefor provisions awarding the plaintiff damages in the sum of $55,000 for past pain and suffering, $10,000 for future pain and suffering, and $580 for past medical expenses, and (3) deleting the provision thereof awarding the plaintiff damages in the principal sum of $210,000 and substituting therefor a provision awarding the plaintiff damages in the principal sum of $65,580; as so modified, the amended judgment is affirmed, without costs or disbursements.
Contrary to the plaintiff's contention, the trial court's conclusion as to the defendant's negligence was not against the weight of the evidence (see, Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492; Matter of Fasano v. State of New York, 113 A.D.2d 885).
The plaintiff had the burden of establishing damages for past lost earnings with reasonable certainty, such as by submitting tax returns or other relevant documentation (see, Poturniak v. Rupcic, 232 A.D.2d 541, 542; Papa v. City of New York, 194 A.D.2d 527). The plaintiff failed to do so (see, Papa v. City of New York, supra, at 531). Similarly, the award of damages for past medical expenses was unsupported by competent evidence to the extent that it exceeded $580, the total amount of the medical bills submitted by the plaintiff (see, Liebman v. Otis Elevator Co., 145 A.D.2d 546, 548).
The award of damages for past and future pain and suffering was excessive to the extent indicated, as it deviated materially from what would be reasonable compensation (see, CPLR 5501[c]).