FILED: WESTCHESTER COUNTY CLERK 01/30/2019 11:35 AM
`NYSCEF DOC. NO. 56
`RECEIVED NYSCEF: 01/30/2019
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`INDEX NO. 55093/2014
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`FILED: WESTCHESTER COUNTY CLERK 01m2019 11:35 ‘
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`EF DOC. NO. 56
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`RfiCfiIVfiD NYSCEF:
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`55093/2014
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`01/30/2019
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`garment: (11mm nf the $18112 nf New Enrk
`Appellate Eiuizinn: Swami! Eluhirial Eepartmmt
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`D57673
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`Q/afa
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`AD3d
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`Argued - September 18, 2018
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`SHERI S. ROMAN, J .P.
`ROBERT J . MILLER
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`FRANCESCA E. CONNOLLY
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`ANGELA G. LANNACCI, JJ.
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`2016-09293
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`2016-09292
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`John Gore, appellant,
`00” CCU
`v Melissa Ann Cardany, respondent. NTYOIQITY
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`c_ ’00
`NI
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`14N 3
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`[LED / DECISION&ORDER
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`(Index No. 55093/ 14)
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`Morgan Levine Dolan, P.C., New York, NY (Duane R. Morgan of counsel), for
`appellant.
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`Wilson, Bave, Conboy, Cozza & Couzens, P.C. (Rivkin Radler LLP, Uniondale, NY
`[Cheryl F. Korman and Merril S. Biscone], of counsel), for respondent.
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`In an action to recover damages for personal injuries, the plaintiff appeals from (1)
`a decision of the Supreme Court, Westchester County (Lawrence H. Ecker, J.), dated August 3, 2016,
`and (2) an order and judgment (one paper) of the same court dated August 17, 2016. The order and
`judgment, upon the decision, granted those branches of the defendant’s motion which were pursuant
`to CPLR 4404(a) to set aside a jury verdict on the issue of damages for past lost earnings in the sum
`of $156,000 and future lost earnings in the sum of $750,000, and for judgment as a matter of law,
`and is in favor of the defendant and against the plaintiff, in effect, dismissing the complaint.
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`ORDERED that the appeal from the decision is dismissed, as no appeal lies from a
`decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509); and it is further,
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`ORDERED that the order and judgment is modified, on the law, by deleting the
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`provision thereof granting that branch of the defendant’s motion which was pursuant to CPLR
`4404(a) to set aside the jury verdict on the issue of damages for past lost earnings in the sum of
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`$156,000, and substituting therefor a provision denying that branch of the motion; as so modified,
`INDEX NO. 55093/2014
`FILED: WESTCHESTER COUNTY CLERK 01/30/2019 11:35 AM
`the order and judgment is affirmed, the complaint is reinstated, and the matter is remitted to the
`NYSCEF DOC. NO. 56
`RECEIVED NYSCEF: 01/30/2019
`Supreme Court, Westchester County, for the entry of an appropriate amended judgment in favor of
`the plaintiff and against the defendant in the principal sum of $156,000; and it is further,
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`ORDERED that one bill of costs is awarded to the plaintiff.
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`In March 2013, the plaintiff allegedly was injured when a motor vehicle he was
`operating was struck in the rear by a vehicle operated by the defendant. Thereafter, the plaintiff
`commenced this action against the defendant to recover damages for personal injuries. The plaintiff
`was granted summary judgment on the issue of liability, and the case proceeded to a jury trial on the
`issue of damages. Following the trial, the jury determined that the plaintiff did not sustain a serious
`injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. However,
`the jury awarded the plaintiff damages for past lost earnings in the sum of $156,000 and future lost
`earnings in the sum of $750,000 over 15 years. The defendant moved, inter alia, pursuant to CPLR
`4404 (a) to set aside the jury verdict on the issue of damages for past and future 10st earnings and for
`judgment as a matter of law. The Supreme Court granted the aforementioned branches of the
`defendant’s motion. The plaintiff appeals.
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`“A motion for judgment as a matter of law pursuant to CPLR 4401 or 4404 may be
`granted only when the trial court determines that, upon the evidence presented, there is no valid line
`of reasoning and permissible inferences which could possibly lead rational persons to the conclusion
`reached by the jury upon the evidence presented at trial, and no rational process by which the jury
`could find in favor of the nonmoving party” (Tapia v Dattco, Inc., 32 AD3d 842, 844; see Cohen v
`Hallmark Cards, 45 NY2d 493, 498).
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`The plaintiff has the burden of establishing damages for past and future lost earnings
`with reasonable certainty (see Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495; Harris v City
`of New York, 2 AD3d 782, 784). A plaintiff is not required to prove that he or she sustained a
`serious injury as defined by Insurance Law § 5102(d) in order to recover for economic loss exceeding
`$50,000 incurred as a result of a motor vehicle accident (see Insurance Law § 5104[a]; Thomas v
`Cefola, 99 AD3d 986, 987).
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`the plaintiff established
`Here, contrary to the Supreme Court’s determination,
`damages for past lost earnings with reasonable certainty through his own testimony and the
`submission of his W-2 forms (see Walker v New York City Tr. Auth., 115 AD3d 941, 943; Cenite
`v Pyramid Floor Covering, Inc. , 104 AD3d 479, 479; cf. Lodato v Greyhawk N. Am., LLC, 39 AD3d
`at 495-496). Further, there was a valid line of reasoning and permissible inferences from which the
`jury could reach the conclusion that the plaintiff was initially unable to work because of the injuries
`he sustained in the accident (see Berrios v 735 Ave. ofthe Ams., LLC, 103 AD3d 472). Accordingly,
`the Supreme Court should have denied that branch of the defendant’s motion which was pursuant
`to CPLR 4404(a) to set aside the jury verdict on the issue of damages for past lost earnings in the
`sum of $156,000.
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`However, we agree with the Supreme Court’s determination that the plaintiff failed
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`December 19, 2018
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`Page 2.
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`GORE v CARDANY
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`FILED: WESTCHESTER COUNTY CLERK 01/30/2019 11:35 AM
`NYSCEF DOC. NO. 56
`RECEIVED NYSCEF: 01/30/2019
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`INDEX NO. 55093/2014
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`FILED: WESTCHESTER COUNTY CLERK 01m2019 11:35 ‘
`NYSCEF DOC. NO. 56
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`to meet his burden of establishing damages for future lost earnings with reasonable certainty. The
`plaintiff did not provide competent medical evidence that he would be unable to perform any work
`in the future (see Coleman v City of New York, 87 AD3d 401; cf. Lane v Smith, 84 AD3d 746,
`748-749). Accordingly, we agree with the court’s determination granting that branch of the
`defendant’s motion which was pursuant to CPLR 4404(a) to set aside the jury verdict on the issue
`of damages for future lost earnings in the sum of $750,000.
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`ROMAN, J .P., MILLER, CONNOLLY and IANNACCI, JJ., concur.
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`ENTER:
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`UPREME COURT, STATE OF NEW YORK
`sAPPELLATE DIVISION SECOND DEPT.
`I APRILANNE AGOSTINO, Clerk of the Appellate Division of the Supr me
`Court, Secondludicial Department, do hereby certlfythatl have compared
`th's co with the ori
`inal filed in my office o_n_
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`at
`thiscoiiii is a correctgtranscrigtionofsaid ongrnral. DEC 1 .‘fiilig
`#mfl‘“.Wa
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`IN WITNESS WHERE F I have hereunto set my hand and affixed
`the seal of this Court oIEC l 9
`l8,
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`M
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`Aprilanne Agostino
`Clerk ofthe Court
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`FILED: WESTCHESTER COUNTY CLERK 01/30/2019 11:35 AM
`NYSCEF DOC. NO. 56
`RECEIVED NYSCEF: 01/30/2019
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`INDEX NO. 55093/2014
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