Jaber v Skendi

[*1] Jaber v Skendi 2017 NY Slip Op 50442(U) Decided on April 5, 2017 Supreme Court, Richmond County Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 5, 2017
Supreme Court, Richmond County

Habib Jaber, Plaintiff,

against

Thomas Skendi, Defendant.



101315/13



Attorney for plaintiff Habib Jaber:

Law Office of Ronald W. Ramirez

By: Ronald W. Ramirez

Attorneys for defendant Thomas Skendi:

DeCicco, Gibbons & McNamara, P.C.

By: William A. Fitzgerald
Alan C. Marin, J.

Thomas Skendi moves here under CPLR 4404 (a) following the jury's verdict in Habib Jaber's claim for injury arising from a June 11, 2013 collision between the parties' vehicles (Mr. Skendi had already been found liable).

The jury found that Mr. Jaber had met the serious injury threshold and awarded him $71,000 for past pain and suffering, and $8,500 for loss of past earnings.[FN1] Defendant seeks an Order directing, as a matter of law, deletion from the award of any amount for past lost earnings.

Habib Jaber testified that he returned to work on September 27, 2013, some three and a half months after the accident; and when he did, it was on a part-time basis. Plaintiff had been taken to Staten Island University Hospital after the accident and remained for six days. While there, he was seen by Dr. Souhel Najjar, the hospital's chief of neurology.

Dr.Najjar continued to treat Mr. Jaber after his discharge from the hospital, seeing him [*2]the following week and then on July 11, one month after the accident. Referring to the latter consult, the neurologist testified:

Q. Was he clear to return to work or school at this time?

A. At that time he was unable to return to work or school. I disabled him at least for two month[s] from that visit date.

Q. Did you issue a disability note on that date for Mr. Jaber.

A. Yes, I did.

To that effect, the jury affirmatively answered the question on the verdict sheet as to whether Mr. Jaber was unable to perform "substantially all of the material acts that constituted his usual and customary daily activities for at least 90 days during the 180 days immediately following the accident."

Defendant cites Morgan v Rosselli, 23 AD3d 356, 357 (2d Dept), lv denied 6 NY3d 705, which rejected the past loss earnings portion of the jury's award because it was based upon "unsubstantiated testimony regarding his purported lost earnings, and [plaintiff] did not submit any documentary evidence to substantiate that claim." Relevant documentary evidence would generally include tax returns or W-2 forms (Martinez v Royal Pak Systems, 300 AD2d 198 and Razzaque v Krakow Taxi, 238 AD2d 161, both First Department). Such documents were not submitted on behalf of Mr. Jaber; nor do we have Dr. Najjar's disability note.[FN2]

For a court to direct a verdict as a matter of law, it must be shown that there was "no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 NY2d 493, 499).

Mr. Jaber was then a 22-year old student at the College of Staten Island, who after classes would work late into the evening at a Times Square souvenir shop, Phantom of Broadway. Plaintiff's testimony was not seamless; Mr. Jaber said he was paid 10 or 12 dollars an hour and had worked 52 hours per week.

In any event, the testimony on rate of pay, weekly hours and Dr. Najjar's treatment (supporting the fact that plaintiff was out of work for at least three months) was consistent with the jury's finding of $8,500 for past lost earnings - - and within the Hallmark Cards standard.

In view of the foregoing,[FN3] IT IS ORDERED that defendant's motion is denied.

ENTER

April 5, 2017

________________________________

Alan C. Marin

J.S.C. Footnotes

Footnote 1:The verdict sheet contained a question on future pain and suffering, for which the jury found no damages. The loss of future earnings was not at issue; see plaintiff 's proposed jury charges and verdict sheet (court exhibit 1).

Footnote 2:The Staten Island University Hospital are plaintiff's exhibit 8.

Footnote 3:The following papers were submitted by the parties and reviewed by the Court: from defendant - - a Notice of Motion with an Affirmation in Support; a Memorandum of Law; and Reply Affirmation; from plaintiff - - an Affirmation in Opposition.