Opinion
2002-07698.
Decided March 1, 2004.
In an action to recover damages for personal injuries, etc., the defendants appeal from a judgment of the Supreme Court, Queens County (Kitzes, J.), entered July 18, 2002, which, upon a jury verdict awarding the plaintiff Thomas Tsamasiros $250,000 for past pain and suffering, $75,000 for future pain and suffering, $130,000 for past and future "shock, emotional distress and physical consequences thereof," $28,500 for past and future medical expenses incurred, and $7,000 for past loss of earnings, and awarding the plaintiff Katherine Tsamasiros $30,000 for loss of consortium, is in favor of the plaintiffs and against them.
Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Stuart M. Bodoff of counsel), for appellants.
Michael B. Palillo, P.C. (Pollack, Pollack, Isaac De Cicco, New York, N.Y. [Brian J. Isaac and Chris Crawford] of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, GLORIA GOLDSTEIN and REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is modified, on the law and facts, by deleting the provisions thereof awarding the plaintiff Thomas Tsamasiros damages in the sum of $130,000 for past and future "shock, emotional distress and physical consequences thereof," $28,500 for past and future medical expenses incurred, and $7,000 for past loss of earnings; as so modified, the judgment is affirmed, with costs to the defendants.
The damages awarded to the plaintiff Thomas Tsamasiros for past pain and suffering do not deviate materially from what would be reasonable compensation for the injuries he sustained ( see White v. Gasparrini, 295 A.D.2d 422; Rowe v. New York City Tr. Auth., 295 A.D.2d 333; Zavurov v. City of New York, 241 A.D.2d 491).
The awards to the plaintiff Thomas Tsamasiros for past and future "shock, emotional distress and physical consequences thereof," are unsupported by the credible evidence because the plaintiff failed to adduce any medical evidence in support thereof (see Goldsmith v. Fight for Sight, 251 A.D.2d 120; Kelly v. Tarnowski, 213 A.D.2d 1054; Erani v. Flax, 193 A.D.2d 777).
As a matter of law, the jury award for loss of earnings and medical expenses must be deleted because the first $50,000 in medical expenses and lost earnings constitutes basic economic loss, which is not recoverable ( see Insurance Law § 5104[a]; Acerra v. Gutmann, 294 A.D.2d 384; Ellis v. Johnson Motor Lines, 198 A.D.2d 258).
The appellants' remaining contentions are without merit.
SANTUCCI, J.P., S. MILLER, GOLDSTEIN and RIVERA, JJ., concur.