Carnell T. Foskey, County Attorney (Lynn, Gartner, Dunne
& Covello, LLP, Mineola, NY [Joseph Covello and Kenneth
L. Gartner], of counsel), for appellants.
Buttafuoco & Associates, PLLC, Woodbury, NY (Ellen
Buchholz and Shawn Alfano of counsel), for respondents.
RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, JEFFREY A. COHEN,
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
defendants Nassau County and Richard Balsan appeal, as
limited by their brief, from so much of an order of the
Supreme Court, Nassau County (Parga, J.), dated October 28,
2014, as denied that branch of their motion pursuant to CPLR
4404(a) which was to set aside a jury verdict in favor of the
plaintiff Alexander Nayberg on the issue of damages for past
and future lost earnings, past and future pain and suffering,
future medical expenses, and future dental expenses, as
contrary to the weight of the evidence and excessive, and for
a new trial on that issue.
that the order is affirmed insofar as appealed from, with
20, 2008, the plaintiff Alexander Nayberg (hereinafter the
plaintiff) was injured when the car he was driving was struck
by a motor vehicle driven by the defendant Richard Balsan,
and owned by Balsan's employer, the defendant County of
Nassau (hereinafter together the appellants). After the
liability phase of a bifurcated trial, a jury determined that
the appellants were, together, 50% liable for the
the damages phase of the trial, the plaintiff adduced
evidence that, as a result of the accident, he underwent
extensive and painful dental procedures, and surgery for a
cervical level herniated disc. The plaintiff further adduced
evidence that he required a daily pain management regimen.
His treating orthopedic surgeon testified that the plaintiff
was disabled and unable to return to work. Although the
plaintiff had lost his job at Bloomingdale's as operating
director of the restaurant division prior to the accident,
the plaintiff's economist computed the plaintiff's
economic damages based upon the income the plaintiff had
earned during the last three years he worked for
Bloomingdale's, opining that the plaintiff has shown that
he had the "skill set and marketability to be hired at
that rate of pay."
jury awarded the plaintiff, inter alia, $447, 858.58 for past
lost earnings, $325, 893 for future lost earnings, $600, 000
for past pain and suffering, $1, 000, 000 for future pain and
suffering, $200, 000 for future medical expenses, and $25,
000 for future dental expenses. The appellants moved pursuant
to CPLR 4404(a) to set aside the jury's damages award.
The Supreme Court denied the motion, and the appellants
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 award deviates materially
from what would be reasonable compensation" (Graves
v New York City Tr. Auth., 81 A.D.3d 589, 589;
see CPLR 5501[c]; Chery v Souffrant, 71
A.D.3d 715, 716). Here, the plaintiff established his claim
for past and future lost earnings with reasonable certainty
through his own testimony as well as the testimony of an
economist, and the award did not deviate from what would be
reasonable compensation (see Walker v New York City Tr.
Auth., 115 A.D.3d 941, 942-943). The appellants failed
to submit any evidence in opposition to the plaintiff's
evidence regarding his income and earning potential. In
addition, considering the nature and the extent of the
injuries sustained by the plaintiff, the jury's awards
for past and future pain and suffering did not deviate
materially from what would be reasonable compensation
(see CPLR 5501[c]; Halsey v New York City Tr.
Auth., 114 A.D.3d 726, 727; Kayes v Liberati,
104 A.D.3d 739, 741; Guallpa v Key Fat Corp., 98
A.D.3d 650, 651). Finally, there is no merit to the
appellants' contention that the jury's awards for
future medical and dental expenses were not supported by the
evidence (see Guallpa v Key Fat Corp., 98 A.D.3d at
651; Janda v Michael Rienzi Trust, 78 A.D.3d 899,
901), and these awards did not deviate from what would be
reasonable compensation (see CPLR 5501[c]).
parties' remaining contentions either are without merit
or need not be addressed in light of our determination.
the Supreme Court properly denied that branch of the
appellants' motion which was to set aside the jury
verdict on the issue of damages for past and future lost
earnings, past and future pain and ...