Opinion
May 21, 1992
Appeal from the Supreme Court, Bronx County (Lewis Friedman, J.).
The action arises out of an industrial accident in which plaintiff's dominant right hand was caught in a power press manufactured by defendant Danly and subsequently sold by defendant Dayton I to third-party defendant Dayton II, plaintiff's employer. We affirm the finding of negligence against Danly, plaintiff having demonstrated through expert testimony that it failed to adequately warn Dayton I of a latent defect in the selector dial of the power press that came to Danly's attention following the manufacture of the press (see, Cover v Cohen, 61 N.Y.2d 261). Similarly, the jury's finding that Dayton I was comparatively negligent as a casual seller of the press for failing to further warn the ultimate user of a known defect is amply supported by the evidence (see, Sukljian v. Ross Son Co., 69 N.Y.2d 89), and the court properly charged the jury on this theory of liability. There is no merit to Danly's argument that the jury's apportionment of liability is against the weight of the evidence.
While we affirm the award for pain and suffering, the award for future lost earnings deviates materially from what would be reasonable compensation (CPLR 5501 [c]), and is not supported by the evidence. Prior to the injury, the 19-year-old plaintiff was earning $200 a week assisting in the operation of the power press; some nine months after the accident, following his recuperation and return to work at Dayton II as a truck and forklift operator, he was earning $250 to $300 a week. Evidence that plaintiff later took a television production course in pursuit of a new career is purely speculative on the issue of his future lost earnings. No proof was adduced that plaintiff could have earned more had he continued to work as a press operator than as a truck and forklift operator (see, Harrison v. Dombrowski, 175 A.D.2d 37) or that his earnings would have been greater if he had completed his studies and embarked upon a new career.
Concur — Murphy, P.J., Ellerin, Kupferman, Ross and Rubin, JJ.