Deleon v Keystone Frgt. Corp.
2013 NY Slip Op 01788 [104 AD3d 541]
March 19, 2013
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 24, 2013

Jose Deleon, Respondent,
Keystone Freight Corp. et al., Appellants.

[*1] Foster & Mazzie, LLC, New York (Mario A. Batelli of counsel), for appellants.

Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for respondent.

Appeal from order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered July 15, 2011, which, in this action for personal injuries sustained in an automobile accident, denied defendants' motion for a new trial on the issue of past lost earnings pursuant to CPLR 4404 (a), deemed appeal from judgment, same court and Justice, entered August 9, 2011, awarding plaintiff, inter alia, $174,000.68 for past lost earnings from the date of the injury to the date of the verdict (CPLR 5520 [c]), and, so considered, the judgment is unanimously affirmed, without costs.

Plaintiff sustained his burden of establishing the amount of his past lost earnings with reasonable certainty through the uncontroverted testimony of his economist (see Papa v City of New York, 194 AD2d 527, 531 [2d Dept 1993], lv dismissed 82 NY2d 918 [1994]). Plaintiff also tendered sufficient medical testimony connecting his injuries to his inability to work for the entire period from the date of the accident to the date of the verdict (cf. Razzaque v Krakow Taxi, 238 AD2d 161, 162 [1st Dept 1997]). The amount of damages is primarily a question for the jury, which was entitled to credit the testimony of plaintiff's treating physicians regarding plaintiff's physical condition and his [*2]ability to work, and to discredit the testimony of defendants' witnesses regarding that issue (see Balsam v City of New York, 298 AD2d 479 [2d Dept 2002]). Concur—Andrias, J.P., Friedman, DeGrasse, Freedman and Abdus-Salaam, JJ.