Opinion
2001-02052
Argued June 17, 2002
October 1, 2002
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, on the ground of inadequacy, from so much of a judgment of the Supreme Court, Nassau County (Dunne, J.), entered December 28, 2000, as, upon a jury verdict awarding him damages in the sums of only $9,000 for past pain and suffering, $50,000 for future pain and suffering, and $16,000 for lost wages, and upon an order of the same court, dated June 2, 2000, denying his motion pursuant to CPLR 4404(a) to set aside the verdict as to damages, is in his favor and against the defendant third-party plaintiff.
James T. Ehrhardt, Commack, N.Y., for appellant.
Steven K. Mantione, Malverne, N.Y., for defendant third-party plaintiff-respondent.
Deegan Deegan, LLP, Hempstead, N.Y. (James V. Deegan of counsel), for third-party defendant-respondent Thomas Blydenburgh, d/b/a Apple Roofing.
Before: ANITA R. FLORIO, J.P., SONDRA MILLER, SANDRA L. TOWNES, BARRY A. COZIER, JJ.
ORDERED that the judgment is modified, on the facts and as an exercise of discretion, by deleting the provision thereof awarding the plaintiff the sum of $9,000 for past pain and suffering and granting a new trial with respect thereto, and the order dated June 2, 2000, is modified accordingly; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, unless within 30 days after service upon the defendant third-party plaintiff and the third-party defendants of a copy of this decision and order, the defendant third-party plaintiff and the third-party defendants shall each serve and file in the office of the Clerk of the Supreme Court, Nassau County, a written stipulation consenting to increase the verdict as to damages for past pain and suffering from the sum of $9,000 to the sum of $40,000, and to the entry of an appropriate amended judgment accordingly; in the event that the defendant third-party plaintiff and the third-party defendants so stipulate, then the amended judgment, as so increased and amended, is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff's "Verified Statement as to Collateral Sources" (hereinafter the Statement) specifically stated that the plaintiff "does not seek to recover any of the cost of medical care." The plaintiff argues that the Statement makes no reference whatsoever to the cost of future medical care, which "by virtue of the Amended Verified Bill of Particulars * * * was an item of damages plaintiff would still pursue." However, in the Statement, the plaintiff specifically reserved his right to pursue claims for loss of past and future earnings, and failed to similarly reserve his right to his claim for the cost of future medical expenses. Accordingly, the plaintiff waived such right (cf. Giardelli v. Rainbow Apparel Dist. Ctr. Corp., 271 A.D.2d 643).
The Supreme Court providently exercised its discretion in precluding the plaintiff's expert economist from testifying based on the plaintiff's failure to comply with CPLR 3101(d)(1)(i). The plaintiff failed to disclose in reasonable detail the subject matter and the substance about which the expert was expected to testify (see CPLR 3101[d][1][i]; Hubbard v. Platzer, 260 A.D.2d 605; Lyall v. City of New York, 228 A.D.2d 566).
The award of $9,000 for past pain and suffering is inadequate to the extent indicated (see CPLR 5501[c]; compare Almada v. Long Is. Light. Co., 246 A.D.2d 563; Torres v. City of New York, 235 A.D.2d 416; Semel v. Klein, 233 A.D.2d 492; Julien v. Physician's Hosp., 231 A.D.2d 678).
FLORIO, J.P., S. MILLER, TOWNES and COZIER, JJ., concur.