Szynalo v. Barretti Carting Corp.

In’ an action to recover damages for personal injuries, etc., the plaintiffs appeal, by permission, from an order of the Supreme Court, Kings County (Bernstein, J.), dated December 14, 2001, which granted the defendants’ application pursuant to CPLR 4404 (a) to set aside a jury verdict in favor of the plaintiff Vincenzo Szynalo and against the defendants awarding him damages in the principal sum of $148,000 for past lost earnings. Ordered that the appeal by the plaintiff Rita Szynalo is dismissed, as she is not aggrieved by the order appealed from (see CPLR 5511); and it is further, Ordered that the order is affirmed; and it is further, Ordered that the defendants are awarded one bill of costs. A review of the record reveals that the plaintiff Vincenzo [559] Szynalo failed to establish his claim for past lost earnings with reasonable certainty (see Bacigalupo v Healthshield, 231 AD2d 538, 539 [1996]). The evidence adduced at the trial was speculative and unsubstantiated by competent medical evidence that he was unable to work because of injuries sustained in the accident (see McKithen v City of New York, 292 AD2d 352, 354 [2002]; Easley v City of New York, 189 AD2d 599, 601 [1993]). Accordingly, he is not entitled, as a matter of law, to recover damages for past lost earnings (see Bacigalupo v Healthshield, supra at 539). The plaintiffs remaining contentions are without merit. Altman, J.P., Goldstein, Luciano and H. Miller, JJ., concur.