
    [820 NYS2d 677]
    Kenneth Marzano, Appellant, v YSF Realty Corp., Respondent.
    Supreme Court, Appellate Term, Second Department,
    July 3, 2006
    APPEARANCES OF COUNSEL
    
      Fine, Olin & Anderman, LLP, Newburgh (Terry D. Horner of counsel), for appellant. Jacobson & Schwartz, Rockville (Raymond E. McAlonan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Judgment modified by increasing the award in favor of plaintiff to the sum of $249,634; as so modified, affirmed without costs.

In this negligence action to recover damages for personal injuries, transferred to the Civil Court pursuant to CPLR 325 (d), the jury awarded plaintiff the sum of $330,000. The Civil Court granted defendant’s motion pursuant to CPLR 4404 (a) to set aside so much of the jury verdict as found that plaintiff lost overtime wages of $210,000. Judgment was thereafter entered in favor of plaintiff in the sum of $92,134 ($90,000 together with $2,134 costs and disbursements), which sum reflects the jury’s finding that plaintiff was 25% comparatively negligent. Plaintiff appeals from said judgment and contends that the court erred in setting aside the jury’s award for past loss of overtime wages.

“ ‘[T]he standard for determining whether a jury verdict is against the weight of the evidence is whether the evidence so preponderated in favor of the movant that the verdict could not have been reached on any fair interpretation of the evidence’ (Torres v Esaian, 5 AD3d 670, 671 [2004]; see generally Schiskie v Fernan, 277 AD2d 441 [2000]; Nicastro v Park, 113 AD2d 129 [1985])” (Harris v Marlow, 18 AD3d 608, 610 [2005]).

After reviewing the record and applying the aforementioned standard to the case at hand, we are of the opinion that the evidence adduced at trial, including plaintiff’s W-2 forms, pay stubs and the testimony of an economist, established plaintiffs past loss of overtime earnings with reasonable certainty (see Karwacki v Astoria Med. Anesthesia Assoc., P.C., 23 AD3d 438 [2005]; Sdregas v City of New York, 309 AD2d 612 [2003]; Poturniak v Rupcic, 232 AD2d 541 [1996]). Therefore, the jury’s award of $210,000 to plaintiff for past loss of overtime earnings was not speculative (cf. Walsh v State of New York, 232 AD2d 939 [1996]) and the lower court improperly set it aside. Accordingly, the judgment is modified by increasing the award in favor of plaintiff to the sum of $249,634 ($92,134 plus $157,500 [75% of $210,000]).

Weston Patterson, J.P,

dissents and votes to affirm the judgment in the following memorandum: In my view, plaintiff failed to submit sufficient proof to support an award for lost overtime earnings. As a general rule, fixture lost earnings, including lost overtime, “must be established with reasonable certainty, based on evidence of the plaintiffs earning ability both before and after [his] injuries” (Thomas v Puccio, 270 AD2d 480, 480 [2000]; see also Morgan v Rosselli, 23 AD3d 356, 357 [2005]; Walsh v State of New York, 232 AD2d 939, 940-941 [1996]). Contrary to the opinion of the court below, whether such losses should be attributed to plaintiffs employer, rather than the homeowner, is irrelevant, since liability has already been established against the homeowner.

In this case, plaintiffs lost overtime earnings have not been proven with reasonable certainty. Although plaintiff submitted proof of his overtime earnings both before and after the accident, he fails to explain how his injuries from two subsequent, unrelated incidents did not affect his overtime earnings ability. Moreover, the record reveals that following his injury in 1998, plaintiff earned approximately $20,000 annually in overtime, undermining any claim that his overtime had been restricted. Indeed, except for 1995 and 1996, plaintiffs overtime earnings prior to the accident were substantially the same as those following the accident. Under these circumstances, plaintiffs award for lost overtime is speculative and cannot be sustained. Therefore, the lower court properly granted defendant’s motion pursuant to CPLR 4404 (a) to set aside so much of the jury verdict as found that plaintiff lost overtime wages of $210,000.

Accordingly, I would vote to affirm the judgment.

Golia and Belen, JJ., concur; Weston Patterson, J.P, dissents in a separate memorandum.  