Texido v. Margarucci

—Judgment unanimously affirmed without costs. Memorandum: Plaintiff appeals from a judgment, entered upon a jury verdict on the issue of damages, awarding her $22,682 for past pain and suffering and $2,318 for lost wages. She contends that the verdict is inadequate, inconsistent and against the weight of the evidence. Alternatively, she contends that the jury’s failure to find permanency of injury does not excuse the jury’s failure to award future damages. We reject those contentions. Supreme Court properly denied plaintiff’s motion to set aside the verdict pursuant to CPLR 4404 (a) (see, Wilcox v Morrow , 226 AD2d 1077; Martin v Seaman, 184 AD2d 996, lv denied 80 NY2d 759). Upon our review of the record, we cannot conclude that the verdict "deviates materially from what would be reasonable compensation” (CPLR 5501 [c]; cf., Storer v Roselle, 185 AD2d 625). Additionally, we conclude that the finding of the jury that plaintiff sustained a significant limitation of use of a body organ, member or system is not inconsistent with its findings that plaintiff did not sustain a permanent injury and is not entitled to future damages. Contrary to plaintiff’s contention, this Court’s decision in Wymer v National Fuel Gas Distrib. Corp. (217 AD2d 920) does not support the conclusion that an award of future damages is compelled. Lastly, we reject the contention of plaintiff that the opinion testimony of defendants’ medical expert was erroneously admitted into evidence. The record establishes that there was an adequate foundation for the admission of that testimony (see generally, DeSisto v New York City Tr. Auth., 151 AD2d 639; cf., Stracher v Corning Glass Works, 39 AD2d 560), that the testimony was not based on speculation (cf., Neidert v 945 Austin S. Edgar, Inc., 204 AD2d 1030, 1031), and that the court properly determined that the witness was qualified to give expert opinion testimony (see, Lack v Lawson Co., 16 NY2d 942; cf., Amato v Hudson Country Montessori School, 185 AD2d 803). (Appeal from Judgment of Supreme Court, Erie County, Flaherty, J.—Damages.) Present—Lawton, J. P., Fallon, Callahan, Doerr and Davis, JJ.