On December 3, 2008, at the conclusion of the liability phase of a bifurcated trial in this action, arising out of auto accident collision on June 5, 2005, the jury determined that defendants R.W. Express LLC and AW 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 MM 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 AW 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 seeking 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 injury, 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 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 MM 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.
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 injury, he tried to continue driving a taxi, but found that he could not. 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. CK, who did testify.
Dr. CK 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. CK testified that Plaintiff sustained two small bulging discs in his cervical spine, and two herniated discs in his lumbar spine. Dr. CK 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. CK’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. CK recounted his understanding of Plaintiff’s work history after the accident.
Upon cross-examination, Dr. CK acknowledged that on June 15, 2006 Plaintiff apparently told one of the other doctors in Dr. CK’s practice that he was then working part-time as a taxi driver.