Miah v Private One of NY LLC

[*1] Miah v Private One of NY LLC 2009 NY Slip Op 51055(U) [23 Misc 3d 1133(A)] Decided on May 29, 2009 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 29, 2009
Supreme Court, Kings County

Mohammed Miah, Plaintiff,

against

Private One of New York LLC, R.W. Express LLC and Andrew Walker, Defendants.



500011/06



Plaintiff Mohammed Miah was represented by Christopher L. Vargas, Esq. of Bader Yakaitis & Nonnenmacher, LLP. Defendants R.W. Express LLC and Andrew Walker were represented by Gregory S. Nelson, Esq. of Morris Duffy Alonso & Faley.

Jack M. Battaglia, J.

On December 3, 2008, at the conclusion of the liability phase of a bifurcated trial in this action, arising out of a motor vehicle collision on June 5, 2005, the jury determined that defendants R.W. Express LLC and Andrew Walker were solely at fault in causing the collision. On December 9, 2008, at the conclusion of the liability phase of the trial, the jury determined that Plaintiff Mohammed Miah had sustained a "serious injury" within the meaning of Insurance Law § 5102 (d), and awarded him damages in the total amount of $517,500; representing $30,000 for past pain and suffering; $100,000 for future pain and suffering, intended to compensate for a period of 30 years; $87,500 for past loss of earnings; and $300,000 for future loss of earnings, again intended to provide compensation for a period of 30 years.

Defendants R.W. Express LLC and Andrew Walker now move for an order "setting aside portions of the verdict," presumably pursuant to CPLR 4404 (a), although no statutory provision is cited in the Notice of Motion or the Affirmation in Support. Plaintiff understands the motion as "seek[ing] relief pursuant to CPLR § 4404 urging that the jury verdict deviates materially from what would be reasonable compensation," although the "material deviation" standard is found in CPLR 5501 (c). As will appear, both CPLR 4404 (a) and CPLR 5501 (c) figure prominently in the review of jury verdicts awarding damages for personal injuries, both for economic loss and non-economic loss.

Defendants do not seek review of the awards for past and future pain and suffering. The motion is limited to the awards for loss of earnings, past and future, seeking reduction of the former and the setting aside of the latter. As to the award for future loss of earnings, Defendants [*2]do not state whether they seek judgment as a matter of law on that part of the verdict, or a new trial. The tenor of Defendants' argument, however, is that Plaintiff is not entitled to any compensation for future loss of earnings.

Plaintiff Mohammed Miah was 34 years old on the date of the accident, June 5, 2005, and was 37 years old at trial. Prior to 2005, and after he immigrated to the United States, Plaintiff worked only as a taxi driver, although he was also involved, without pay, with an organization that provided aid to persons in Bangladesh and immigrants from that country. Defendants maintain that the evidence at trial would support a finding of pre-accident earnings from taxi driving of approximately $19,000 each year, which is actually more than the amount proferred by Plaintiff (see Affirmation in Opposition, ¶ 32.)

Beginning in 2005, Plaintiff has provided income tax preparation services, for which he has earned approximately $19,000 to $20,000 each year. Plaintiff testified at trial that, before the accident, he intended to both continue to drive a taxi and to provide tax preparation services, the latter during the months January to April, when such services are usually required.

Plaintiff also testified that, after the accident, he tried to continue driving a taxi, but found that he could not:

"After fifteen, twenty minutes of driving, pain started in the lower back, so I could not sit, I had to stop and stand up and do a kind of exercise and stop. I could not sit for a long time, that's why I could not go back." (Trial Transcript at 62.)

According to Plaintiff, he has not driven a taxi since January 2006. "I am doing only tax preparation and sitting down, like, the rest of the year, I can't drive." (Id. at 64.) He estimated his loss of earnings from taxi driving as $20,000 each year. "I am not driving, I could make $20,000 or more, but now I can't." (Id.)

After the accident, Plaintiff treated for approximately eight months at Metro Medical, P.C. No one from Metro Medical testified at trial, but its records were admitted into evidence, and they were reviewed by Plaintiff's subsequent treating physician, Dr. Christopher Kyriakides, who did testify.

Dr. Kyriakides first saw Plaintiff on May 17, 2006 and last examined him on August 20, 2008. Based upon MRI studies of Plaintiff's cervical spine and lumbar spine taken, respectively, October 25 and October 28, 2007, i.e., more than two years after the accident, Dr. Kyriakides testified that Plaintiff sustained "two small bulging discs" in his cervical spine, and two herniated discs in his lumbar spine. (Id. at 15.) Dr. Kyriakides also testified to other positive findings, including restricted range of motion in the cervical spine and the lumbar spine.

Most important for present purposes is Dr. Kyriakides's testimony concerning Plaintiff's ability to work, since he provided the only evidence, other than Plaintiff's testimony, to support the claim for past and future loss of earnings. Dr. Kyriakides recounted his understanding of [*3]Plaintiff's work history after the accident:

"He was a taxi driver, and he went back doing a sedentary job, something not as physical. From what I know, he has some accounting skills. So, he does tax returns, and perform a lot of that work for people that he knows, and still would drive around but not a whole lot. I don't think he ever drove as a tab [sic] driver, he kind of just drove a personal car." (Id. at 11.)

Concerning Plaintiff's ability to work after the accident, Dr. Kyriakides testified:

"Well, no, I don't think we ever suggested that he go - - work as a cab driver, especially with two herniations late 2007. But, I don't see a problem with him doing non-physical work, you know, really, like what he is kind of doing.

. . .

If you think about that spine and the disc coming out and pinching a nerve, once you sit down in a cab and driving around - - and that's a position that makes the pressure even more. So even though you are sitting in a desk job, you can always move around and find a more comfortable position. Driving in that taxi-cab in a fixed position where you really can't get out and stretch much and move around is not the ideal job for him any longer, it could be in the future, but not right now." (Id. at 24-25.)

Concerning the possibility of vocational rehabilitation:

"Well, the vocational rehab is a form of rehabilitation where if a patient was, for example, a chef, then they get into an accident and can't use their hand, and can't work, they don't work, you can go to a vocational rehab specialist and they might be able to find you another profession, you know, maybe you can, you know, make furniture or something. If someone like Mr. Miah who was a cab driver, he did his own vocational rehab, which is, he had to pay for his family, so the guy went out and did whatever else he could do to live, he does tax returns. You don't send people - - I've trained at Rusk, I was chief resident at Rusk. If I would send people like this to vocational rehab, I would have a serious problem with my judgment, because I send people who can't work and are looking for something to do. But I am aware of those agencies and I have sent many people there, but not people like him, that are working." (Id. at 44.)

Upon cross-examination, Dr. Kyriakides acknowledged that on June 15, 2006 Plaintiff apparently told one of the other doctors in Dr. Kyriakides's practice that he was then working part-time as a taxi driver.

As previously noted, the jury awarded Plaintiff $87,500 for past lost earnings, and $300,000 for future lost earnings, intended to compensate Plaintiff for 30 years. (The Court had instructed the jury that, according to the statistical tables, Plaintiff had a working life expectancy of 23.9 years.) Defendants challenge both awards, but on different grounds. [*4]

As for the award for past lost earnings, Defendants contend that the evidence does not support an award of $87,500 for the three and a half year period from the date of the accident until trial. Rather, according to Defendants, at the annual rate of approximately $19,000, "the verdict could have been approximately $70,000." (Affirmation in Support at 3.) Defendants also point out that "Insurance Law § 5104 [a] precludes recovery of basic economic loss which does not exceed $50,000.00." (Id.)

As for the award for future lost earnings, Defendants contend that it must be vacated in its entirety. Defendants argue that "the claim of plaintiff and Dr. Kyriakides that plaintiff is unable to return to driving a taxi is not a sufficient basis to justify an award of future lost earnings"; "[r]ather, plaintiff must establish that Mr. Miah is precluded from engaging in any wage earning activity." (Id., at 6.)

Plaintiff's position is that "if the accident had not occurred then Mr. Miah could have earned both the yearly income of tax return services and taxi-cab driving." (Affirmation in Opposition, ¶ 32.) Instead, "Mr. Miah can only earn half of what he would usually be able to earn doing both taxi cab driving and tax return services" (id.,¶ 30); "due to the accident he is limited to performing tax returns solely which provides only half of his earning potential" (id., ¶ 27).

Under CPLR 4404 (a), "the court may set aside a verdict . . . and direct that judgment be entered in favor of a party entitled to a judgment as a matter of law or it may order a new trial . . . where the verdict is against the weight of the evidence." The applicable standards are familiar:

"There must be no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial' in order to set aside a judgment and direct judgment in favor of a party entitled to judgment . . . A jury verdict should not be set aside and a new trial ordered unless the jury could not have reached the verdict on any fair interpretation of the evidence'." (LePatner v VJM Home Renovations, Inc., 295 AD2d 322, 323 [2d Dept 2002] [quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 (1978) and Nicastro v Park, 113 AD2d 129, 134 (2d Dept 1985)]; see also Taylor v Martorella, 35 AD3d 722, 723-24 [2d Dept 2006].)

Specifically as to damages, "an award is excessive or inadequate if it deviates materially from what would be reasonable compensation," and a new trial may be granted "unless a stipulation is entered to a different award." (See CPLR 5501 [c].) "Although phrased as a direction to New York's intermediate appellate courts, § 5501 (c)'s deviates materially' standard . . . instructs state trial judges as well." (Gasperini v Center for Humanities, Inc., 518 US 415, 424 [1996] [citing, inter alia, Shurgan v Tedesco 179 AD2d 805, 806 (2d Dept 1992)].)

The interplay between the standards for judgment as a matter of law or for a new trial under CPLR 4404 (a) and the "material deviation" standard under CPLR 5501 (c) is not entirely clear to this judge. (See Carr v Third Colony Corp., 2001 NY Slip Op 40400 [U], * 2- * 5 [Civ [*5]Ct, King County 2001].) One commentator describes the additur and remittitur processes governed by CPLR 5501 (c) as "really a kind of weight of the evidence' phenomenon," but also states that "the minimum (in the case additur) or the maximum (in the case of remittitur) found by the court to be permissible on the facts" are "treated in effect as a matter-of-law terminal, whether it is technically that or not." (See David D. Siegel, New York Practice § 407, at 689 [4th Ed].)

There are, indeed, distinctions to be made. The "material deviation" standard of CPLR 5501 (c) seems more clearly suited to review of the amount of damages awarded, rather than to determinations that damages of some amount have in fact been sustained. "The amount of damages to be awarded to [a plaintiff] for personal injuries is a question for the jury, and its determination will not be disturbed unless the awards deviate materially from what would be reasonable compensation." (Firmes v Chase Manhattan Auto. Fin. Corp., 50 AD3d 18, 28 [2d Dept 2008].)

"Although economic awards are quantifiable, awards for pain and suffering, or for loss of services and society, do not lend themselves as easily to computation'." (Okraynetes v Metropolitan Tr. Auth., 555 F Supp 2d 420, 435 [SDNY 2008].) And there are awards that might be the result of "quantifiable error" and others that are "intrinsically excessive." (See id. at 434.) "Prior awards are regarded as instructive, but not binding, by courts performing § 5501 (c) review." (Id. at 436 [citing, inter alia, Senko v Fonda, 53 AD2d 638, 639 (2d Dept 1976)].) They are of little use where economic loss is at issue.

Specifically as to lost earnings, past and future, the courts speak variously of "matter of law," "weight of the evidence," and "material deviation" - - that is, when they refer to a standard at all, which is far from always. The identification and application of the appropriate standard is even further complicated by the doctrine of "mitigation of damages" - - particularly, but not exclusively, where economic damages are at issue - - which carries its own evidentiary burden. No overriding methodology has been articulated to address the interrelated elements of a lost earnings award, and none will be attempted here.

"Claims for lost earnings must be ascertainable with a reasonable degree of certainty and may not be based on conjecture." (Glaser v County of Orange, 54 AD3d 997, 998 [2d Dept 2008] [internal quotation marks and citations omitted]; see also Schiller v New York City Tr. Auth., 300 AD2d 296, 296-97 [2d Dept 2002]; Davis v City of New York, 264 AD2d 379, 379-80 [2d Dept 1999].) "It was the plaintiff's burden to establish damages for past and future lost earnings with reasonable certainty, such as by submitting tax returns or other relevant documentation'." (Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495-96 [2d Dept 2007] [quoting Karwacki Astoria Med. Anesthesia Assoc., P.C., 23 AD3d 438, 439 (2d Dept 2005)]; see also O'Brien v Mbugua, 49 AD3d 937, 937 [3d Dept 2008] ["initial burden"]; De Virgilio v Feller Precision Stage Lights, Inc., 47 AD3d 522, 523 [1st Dept 2008]; Crockett v Long Beach Med. Ctr., 15 AD3d 606, 607 [2d Dept 2005]; Perez v Audubon at 186th St., LLC, 1 AD3d 492, 494 [2d Dept 2003]; Papa v City of New York, 194 AD2d 527, 531 [2d Dept 1993].) [*6]

Unless a claimed disability is observable and appreciated by laypersons, a lost earnings claim requires "medical testimony connecting plaintiff's injuries to plaintiff's claimed inability to work." (See Razzaque v Krakow Taxi, Inc., 238 AD2d 161, 162 [1st Dept 1997]; see also Szynalo v Barretti Carting Corp., 304 AD2d 558, 559 [2d Dept 2003]; Easley v City of New York, 189 AD2d 599, 601 [1st Dept 1993].)

At the core of lost earnings assessment is the "focus [ ], in part, on the plaintiff's earning capacity both before and after the accident." (See Harris v City of New York, 2 AD3d 782, 784 [2d Dept 2003] [quoting Clanton v Agoglitta, 206 AD2d 497, 499 (2d Dept 1994)]; see also Beadleston v American Tissue Corp., 41 AD3d 1074, 1078 [3d Dept 2007]; Johnson v Rapisarda, 286 AD2d 709, 710 [2d Dept 2001]; Bacigalupo v Healthshield, Inc., 231 AD2d 538, 539 [2d Dept 1996]; Carlo v Perez, 211 AD2d 607, 608 [2d Dept 1995].) Despite variance in judicial language, there is no "distinction between future loss of earnings and future impairment of earning ability." (See Taylor v Henderson, 175 AD2d 590, 590-91 [4th Dept 1991].)

When future loss of earnings is claimed, "reasonable certainty" must be based upon "future probabilities." (See Kirschhoffer v Van Dyke, 173 AD2d 7, 10 [3d Dept 1991].) An "expert vocational economic analyst" is permitted to provide an opinion as to future lost earnings, since "the process of calculating such damages is beyond the general knowledge of the average juror." (See La Fountain v Franzese, 282 AD2d 935, 940 [2d Dept 1999].) Where the plaintiff is an infant, expert opinion of that type might be required. (See Davis v City of New York, 264 AD2d at 379-80.)

The lost earnings claim, therefore, is comprised of several interrelated elements, on each of which the plaintiff bears at least the burden of coming forward with evidence: medical evidence of disability, depending upon the nature of the injury; proof of causation in fact, primarily the difference between "the plaintiff's earning capacity before and after the accident" (see Harris v City of New York, 2 AD3d at 784); and proof of the amount of the loss, including necessary documentation and fair calculation.

An injured plaintiff, moreover, is "obligated to mitigate damages by endeavoring to seek alternate employment" (see McLaurin v Ryder Truck Rental, 123 AD2d 671, 673 [2d Dept 1986]; see also Tworek v Mutual Hous. Assoc. of NY, Inc., 1 AD3d 588, 589 [2d Dept 2003]), which may include "to the extent that [the plaintiff] reasonably could seek and obtain [vocational] rehabilitation" (see Bell v Shopwell, Inc., 119 AD2d 715, 716 [2d Dept 1986]; see also Tompson v Port Auth. of NY and N.J., 284 AD2d 232, 233 [1st Dept 2001].) When requested by the defendant, the court must charge the jury on the plaintiff's obligation to mitigate damages. (See Gerbino v Tinseltown USA, 13 AD3d 1068, 1072 [4th Dept 2004]; Murphy v Columbia University, 4 AD3d 200, 203-04 [1st Dept 2004]; see also Rohring v City of Niagra Falls, 192 AD2d 228, 231 [4th Dept 1993], aff'd 84 NY2d 60 [1994].) The injured plaintiff who does not make reasonable effort to mitigate damages "will be debarred from recovering for those additional damages which result from such failure." (See Norske v Ameriekalinje v Sun P. & P. Assn., 226 NY 1, 7 [1919]; see also Prudential Ins. Co. v Dewey Ballantine, 170 AD2d 108, 115 [*7][1st Dept 1991].)

The difficulty arises, however, in that "[w]hile the plaintiff is required to mitigate damages . . . , the burden of proving a lack of diligent effort to mitigate damages is upon the defendant." (See Cornell v T.V. Development Corp., 17 NY2d 69, 74 [1966]; see also LaSalle Bank N.A. v Nomura Asset Capital Corp., 47 AD3d 103, 108 [1st Dept 2007].) The precise relationship between a plaintiff's burden to prove damage or loss in fact, and a defendant's burden to prove a failure to mitigate damages, is not entirely clear, particularly where, as here, the defendant does not request that the court charge mitigation.

Turning to the jury's awards here, there seems little doubt that the award of $87,500 for past loss of earnings cannot stand. There was no evidence upon which the jury could base a determination that Plaintiff would have earned more from driving a taxi during the three and a half year period from the accident until trial than he earned before the accident. The $70,000 amount proferred by Defendants is not disputed by Plaintiff on this motion, and appears somewhat generous to Plaintiff as a matter of arithmetic based upon a pre-accident annual income of approximately $19,000, and given Plaintiff's testimony that he returned to driving a taxi to some extent and for some period prior to trial. The appropriate remedy, based upon the Court's review of the caselaw, would be a new trial on this element of damages unless Plaintiff agrees to a reduction in the award. (See O'Brien v Mbugua, 49 AD3d at 940; Lantigua v 700 W. 178th St. Assocs., LLC, 27 AD3d 266, 267 [1st Dept 2006]; Nelson v 1683 UNICO, Inc., 246 AD2d 447, 447-48 [1st Dept 1998].)

Defendants are also correct that Plaintiff may recover for loss of earnings only to the extent that they exceed $50,000 in "basic economic loss," which would include medical expenses as well as loss of earnings. (See Insurance Law § § 5102 [a] [1], [2], 5104; Hutchinson v Clare Rose of Nassau, Inc., 40 AD3d 702, 703 [2d Dept 2007]; Poturnick v Rupcic, 232 AD2d 541, 542 [2d Dept 1996].) The parties agreed at trial that the Court would make any necessary adjustment after the jury's verdict, and a hearing will be scheduled at the appropriate time for that purpose, if the parties cannot agree on an adjustment.

Defendants' "limited objection in its postverdict motion, addressed only to the precise amount of the [past] lost earnings award, effectively waived any objection to the quality of the plaintiff's proof on this issue." (See Grinnell v City of New York, 244 AD2d 171, 172 [1st Dept 1997].)

"The jury was entitled to credit the testimony of the plaintiff's treating physician[ ] regarding the plaintiff's physical condition concerning future lost earnings, and to discredit the testimony of the defendants' witnesses regarding that issue." (See Balsam v City of New York, 298 AD2d 479, 480 [2d Dept 2002]; see also Campbell v City of Elmira, 198 AD2d 736, 738 [3d Dept 1993], aff'd 84 NY2d 505 [1994]; Placakis v City of New York, 289 AD2d 551, 553 [2d Dept 2001].) Given the nature of Plaintiff's work, taxi driving, Dr. Kyriakides's testimony is competent and sufficient evidence that he could do it no longer, and the jury's acceptance of the [*8]testimony was not against the weight of the evidence.

The jury also apparently accepted Plaintiff's testimony that, before the accident, he intended to continue driving a taxi, apparently indefinitely, even though he had returned to school to learn computer skills and the knowledge required for tax preparation, and was earning considerably more from that business for the time spent, and even though there was no evidence of the continued viability of taxi driving during the 30-year period over which the jury provided lost-earnings compensation (see Benefield v Halmar Corp., 25 AD3d 633, 635-36 [2d Dept 2006] ["award for future lost earnings . . . does not take into account the physical nature of the work, the likelihood of injury, and the cyclical fluctuations in the construction industry"]; Toscarelli v Purdy, 217 AD2d 815, 819 [3d Dept 1995] ["jury's implicit conclusion that plaintiff would continue working as a full-time nightclub entertainer for his entire 33-year life expectancy is shocking and shall be set aside"].) Defendants do not challenge the approximately $19,000 annual earnings from taxi driving, which, in any event, is more than the approximately $10,000 annually computed from the jury's award of $300,000 over 30 years.

The primary difficulty, however, with the future loss-of-earnings award is the evidence, presented by Plaintiff's own witness, that, even after the accident, Plaintiff was able to do other work. Indeed, both before and after the accident, Plaintiff developed a tax preparation business that yielded the same compensation for four-months' effort that driving a taxi yielded for eight months, even assuming he was not doing both during January through April. And, even assuming that Plaintiff's tax preparation business could not be extended beyond that four-month period, it demonstrates Plaintiff's ability to earn by doing work other than taxi driving that could provide even higher compensation.

Plaintiff testified to no efforts made after the accident to replace his income from taxi driving, although, to be fair, he was not asked by either his counsel or Defendants'. The question is, was it Plaintiff's burden to introduce evidence that he would be unable to replace the income from taxi driving, in order to show loss in fact, or was it Defendants' burden in an effort to "mitigate" damages that necessarily would follow?

"A litigant who seeks recovery for diminution of future earnings is obligated to submit some evidence showing the difference between what he is now able to earn and what he could have earned if he had not been injured." (Kaylor v Amerada Hess Corp., 141 AD2d 331, 332 [1st Dept 1988]; see also Bacigalupo v Healthshield, Inc., 231 AD2d 538, 539 [2d Dept 1996] [plaintiff "failed to establish any diminution in earning capacity resulting from his injury"; "not entitled, as a matter of law to recover damages for loss of earnings"].) Here, Plaintiff's evidence as to "what he is now able to earn" is limited to the four-month period during which he provides tax preparation services.

There are opinions in which an award of future loss of earnings is upheld upon evidence that the plaintiff cannot perform the work s/he performed before the accident. (See Calo v Perez, 211 AD2d 607, 608 [2d Dept 1995] ["masonry profession"]; Campbell v City of Elmira, 198 [*9]AD2d at 738 ["engine repair business"].) Courts have upheld awards where the plaintiff was "disabled from engaging in construction work or any other physically strenuous activity" and "had no other employment skills" (see Johnston v Colvin, 145 AD2d 846, 849 [3d Dept 1988]); and where the plaintiff was "disabled from both physical and sedentary employment as a result of the accident" (see Close v State of New York, 90 AD2d 599, 599 [3d Dept 1982].)

Similarly, an award for future lost earnings was upheld where the plaintiff was "totally disabled from construction work and testified to the maximum earnings from work that he could perform." (See Strangio v New York Power Auth., 275 AD2d 945, 946 [4th Dept 2000]; see also Flores v Parkchester Pres. Co., L. P., 42 AD3d 318, 319 [1st Dept 2007] [plaintiff not "totally disabled"; vocational rehabilitation expert estimated "best case scenario"].)

A more appropriate authority, given the evidence here, is Beadleston v American Tissue Corp. (41 AD3d 1074 [3d Dept 2007].) There, "despite one physician's testimony that plaintiff likely would be unable to work as a truck driver at some point in the future, no one opined as to when that would occur or whether he then would be able to do some other, less physical work at comparable pay." (Id. at 1078.) "Accordingly, his future lost wages were not shown with reasonable certainty and no award should have been made in that category." (Id.)

And in Harris v City of New York (2 AD3d 782 [2d Dept 2003]), "[t]he calculation by the plaintiff's expert of future lost earnings was based upon the assumption that the plaintiff was incapable of any future employment due to his injury" (id. at 784.) "As the evidence did not support the expert's underlying assumption that the plaintiff's injury precluded him from engaging in any wage-earning activity, the expert's opinion was of no probative value, and the claim for future lost earnings should have been dismissed as speculative." (Id.; see also Dell v Port Auth. of NY & N.J., 24 AD3d 155, 156 [1st Dept 2005] ["record contains no evidentiary support for plaintiff's expert's pessimistic assumptions concerning plaintiff's future earning potential"]; Bell v Shopwell, Inc., 119 AD2d at 716-17 ["Many persons with similar problems manage to hold sedentary jobs, coping, for example, by standing up and stretching periodically."].) The result seems ensured where there is evidence that, although the plaintiff could no longer do the job s/he was doing at the time of the accident, s/he held other jobs, either before or after accident, that s/he apparently could do. (See Kaylor v Amarada Hess Corp., 141 AD2d at 331-32 [sea v shore employment]; Alferoff v Casagrande, 122 AD2d 183, 185 [2d Dept 1986] [cosmetologist v receptionist].)

The Court is aware of opinions in which the possibility of "replacement employment" is addressed under "mitigation of damages." (See Tworek v Mut. Hous. Ass'n of NY, Inc., 1 AD3d 588, 589 [2d Dept 2003] ["injured plaintiff was employable in a position that did not involve heavy physical labor, such as light or sedentary clerical work"]; Novko v State of New York, 285 AD2d 696, 697-98 [3d Dept 2001] ["no basis to invoke the doctrine" of mitigation of damages where "court's presumptions that other jobs . . . were available to claimant on a full-time basis . . are speculative and not supported by . . . the record"]; Aman v Federal Express Corp., 267 AD2d 1077, 1078 [4th Dept 1999] [plaintiff "disabled from electrical construction work but capable of [*10]performing light or sedentary work"].) None of these opinions, however, address the injured plaintiff's burden on a claim for future lost earnings, particularly where the plaintiff's own evidence is that he is not totally disabled, and, in any event, these opinions must be assessed in light of the substantial authority previously discussed.

The Court concludes, therefore, that, particularly in light of the testimony of Dr. Kyriakides and Plaintiff's demonstrated ability to earn at a higher rate than as a taxi driver, the jury's award of $300,000 for future loss of earnings cannot stand.

The question becomes the appropriate relief. Specifically, should judgment on the claim be granted to Defendants "as a matter of law" because there is "no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial" (see LePatner v VJM Home Renovations, Inc., 295 AD2d at 323 [quoting Cohen v Hallmark Cards, 45 NY2d at 499)]); or should there be a new trial because the verdict was "contrary to the weight of the evidence" and not reached "on any fair interpretation of the evidence" (see id. [quoting Nicastro v Park, 113 AD2d at 134)]; or should there be a new trial unless Plaintiff agrees to a judgment in a lower amount because the verdict "deviates materially from what would be reasonable compensation" (see CPLR 5501 [c].)

As previously noted, the extensive caselaw uses all of the formulations, which is, of course, quite appropriate because of the multi-faceted nature of a loss-of-earnings claim and, presumably, the precise nature of the deficiency in proof in the particular case. Categorization is difficult because the opinions do not always describe the deficiency in proof that leads the court to set the verdict aside, if only conditionally.

Were the Court to venture a guideline, it would be based upon the distinction between proof as to the fact of damage and that as to the amount of damages. "It is elemental that damages cannot be recovered in excess of the actual damage sustained." (France & Canada S.S. Corp. v Berwind-White Coal Mining Co., 229 NY 89, 95 [1920].) "Although the fact that the plaintiff has sustained damages must be proved with certainty, nothing like precise mathematical accuracy can be obtained in the calculation of the amount of damages." (Borne Chemical Co., Inc. v Dictrow, 85 AD2d 646, 650 [2d Dept 1981].) "[W]here it is certain that damages have been caused by a wrong and the only uncertainty is as to amount, there can be no good reason for refusing on account of such uncertainty any damages for the wrong." (Mills Studio, Inc. v Chenango Valley Realty Corp., 15 AD2d 138, 141 [3d Dept 1961].)

Here, the deficiency in Plaintiff's proof, in light of its own expert testimony and the undisputed facts as to Plaintiff's work and earnings history, constitutes a failure to demonstrate a compensable loss of future earning capacity, and not merely a failure to properly account for, or compute, the amount of future lost earnings. The authorities relied upon, moreover, where the plaintiffs similarly failed to produce evidence that they were unable to earn as much by doing other work, dismissed the claim for future loss of earnings. Those authorities require the same result here. [*11]

Defendants' motion to set aside the jury's verdict is granted to the extent that the jury's award of $300,000 for future loss of earnings is set aside, and the claim for future loss of earnings is dismissed as a matter of law; the jury's award of $87,500 for past loss of earnings is set aside, and a new trial granted on that element of damages only, unless, within 30 days after service upon him of a copy of this decision and order, Plaintiff shall file with the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict for past loss of earnings from the principal sum of $87,500 to the principal sum of $70,000, subject to further reduction as might be required by the No-Fault Law.

May 29, 2009_____________________

Jack M. Battaglia

Justice, Supreme Court