Opinion
2003-639 K C.
Decided December 22, 2003.
Appeal by defendant, as limited by its brief, from so much of a judgment of the Civil Court, Kings County (G. Wright, J.), entered August 20, 2002, after a jury trial, as awarded plaintiff the sum of $100,000 for past loss of earnings and $50,000 for future loss of earnings. Cross appeal by plaintiff on the ground of inadequacy from so much of the judgment as awarded her $10,000 for past pain and suffering, and did not award any damages for future pain and suffering.
Judgment unanimously affirmed without costs.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
On October 7, 1993, while riding on a subway train, plaintiff was involved in an accident in which she fell from a standing position, and hit the lower portion of her back on a subway seat. A trial solely on the issue of damages was held in January of 2001, and the jury returned a verdict awarding plaintiff $10,000 for past pain and suffering, $0 for future pain and suffering, $10,000 for past medical expenses, $100,000 for past lost earnings, and $50,000 over a period of 20 years for future lost earnings.
With respect to defendant's position that the plaintiff failed to prove her lost earnings with "reasonable certainty" ( see Gomez v. City of New York, 260 AD2d 598) and that therefore the jury's award of past and future lost earnings cannot stand, this contention is unpreserved for appellate review, and we decline to reach the issue in the exercise of our interest of justice jurisdiction ( see Saleh v. Sears, Roebuck Co., 119 A.D2d 652).
Nor can we accept plaintiff's contention that plaintiff is entitled to a new trial on the issue of past and future pain and suffering. It is well settled that a jury's assessment of damages should not be disturbed unless it "deviates materially from what would be reasonable compensation" (CPLR 5501 [c]). Upon our review of the record, we find that the award of damages for past and future pain and suffering was not inadequate. To the extent that plaintiff contends that the jury's verdict was internally inconsistent, plaintiff has failed to preserve that issue for appellate review. In any event, the verdict was not inconsistent, since the jury could have reasonably found that while plaintiff sustained injuries that could have rendered her incapable of performing strenuous work, the injuries had healed to the extent that she would no longer suffer future pain ( see e.g. Batts v. Rutrick, 298 AD2d 417; Gribbon v. Missionary Sisters of Sacred Heart, 244 AD2d 185; Kinsella v. Berley Realty Corp., 240 AD2d 374). Moreover, the verdict was not against the weight of the evidence ( see e.g. Cohen v. Hallmark Cards, 45 NY2d 493).