Velasco v Green-Wood Cemetery

Velasco v Green-Wood Cemetery 2008 NY Slip Op 01390 [48 AD3d 271] February 14, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 16, 2008

Domingo Retama Velasco, Appellant,
v
The Green-Wood Cemetery et al., Respondents.

—[*1] Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac of counsel), for appellant.

Faust Goetz Schenker & Blee LLP, New York City (Lisa L. Gokhulsingh of counsel), for respondents.

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered November 14, 2006, which granted defendants' motion for summary judgment dismissing plaintiff's claim for future lost earnings, unanimously affirmed, without costs.

Plaintiff, who was previously granted summary judgment on the issue of defendants site owners' liability under Labor Law § 240 (1) (8 AD3d 88 [2004]), failed to adduce evidence responsive to defendants' showing, based on plaintiff's deposition, that plaintiff returned to the same type of work he was doing at the time of the accident only four months after the accident. While the determination of the Workers' Compensation Board on which plaintiff relies found that he has a "permanent partial disability," namely, "a 7.50% schedule loss of use of the Left Hand," and awarded him benefits based on an average weekly wage of $400, the benefits ran for only the four-month period immediately following the accident, and there was no finding that plaintiff was unable to return to work. The expected testimony of a vocational rehabilitation expert and orthopedic surgeon, set forth in expert disclosure notices prepared by plaintiff's attorney, is not "evidentiary proof in admissible form," as required to defeat a meritorious motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Concur—Lippman, P.J., Tom, Buckley and Gonzalez, JJ.