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Plaintiff MM twas 34 years old on the date of the accident…cont

As previously noted, the jury awarded Plaintiff $87,500 for past lost earnings, and $300,000 for future lost earnings, intended to compensate Plaintiff for 30 years. Defendants challenge both awards, but on different grounds. As for the award for past lost earnings, Defendants contend that the evidence does not support an award of $87,500 for the three and a half year period from the date of the accident until trial. Rather, according to Defendants, at the annual rate of approximately $19,000, the verdict could have been approximately $70,000.

Defendants also point out that Insurance Law § 5104 [a] precludes recovery of basic economic loss which does not exceed $50,000.00.

As for the award for future lost earnings, Defendants contend that it must be vacated in its entirety. Defendants argue that the claim of plaintiff and Dr. CK that plaintiff is unable to return to driving a taxi is not a sufficient basis to justify an award of future lost earnings; rather, plaintiff must establish that Mr. MM is precluded from engaging in any wage earning activity.

Plaintiff’s position is that if the injury had not occurred then Mr. MM could have earned both the yearly income of tax return services and taxi-cab driving. Instead, Mr. MM can only earn half of what he would usually be able to earn doing both taxi cab driving and tax return services; due to the accident he is limited to performing tax returns solely which provides only half of his earning potential.

Under CPLR 4404 (a), the court may set aside a verdict and direct that judgment be entered in favor of a party entitled to a judgment as a matter of law or it may order a new trial where the verdict is against the weight of the evidence.

Specifically as to damages, an award is excessive or inadequate if it deviates materially from what would be reasonable compensation, and a new trial may be granted unless a stipulation is entered to a different award.

The interplay between the standards for judgment as a matter of law or for a new trial under CPLR 4404 (a) and the material deviation standard under CPLR 5501 (c) is not entirely clear to this judge. One commentator describes the additur and remittitur processes governed by CPLR 5501 (c) as really a kind of weight of the evidence’ phenomenon, but also states that the minimum or the maximum found by the bite court to be permissible on the facts are treated in effect as a matter-of-law terminal, whether it is technically that or not.

There are, indeed, distinctions to be made. The material deviation standard of CPLR 5501 (c) seems more clearly suited to review of the amount of damages awarded, rather than to determinations that damages of some amount have in fact been sustained. The amount of damages to be awarded to a plaintiff for personal injury is a question for the jury, and its determination will not be disturbed unless the awards deviate materially from what would be reasonable compensation.

Although economic awards are quantifiable, awards for pain and suffering, or for loss of services and society, do not lend themselves as easily to computation. And there are awards that might be the result of quantifiable error and others that are intrinsically excessive. Prior awards are regarded as instructive, but not binding, by courts performing § 5501 (c) review. They are of little use where economic loss is at issue.

Specifically as to lost earnings, past and future, the courts speak variously of matter of law, weight of the evidence, and material deviation that is, when they refer to a standard at all, which is far from always. The identification and application of the appropriate standard is even further complicated by the doctrine of mitigation of damages particularly, but not exclusively, where economic damages are at issue which carries its own evidentiary burden. No overriding methodology has been articulated to address the interrelated elements of a lost earnings award, and none will be attempted here.

Claims for lost earnings must be ascertainable with a reasonable degree of certainty and may not be based on conjecture. Unless a claimed disability is observable and appreciated by laypersons, a lost earnings claim requires medical testimony connecting plaintiff’s injuries to plaintiff’s claimed inability to work.

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