Appeals: Rene Ramirez v. City of New York

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279 A.D.2d 563; 719 N.Y.S.2d 289, *;
2001 N.Y. App. Div. LEXIS 579, **
Rene Ramirez, Respondent-Appellant, v. City of New York, Appellant-Respondent.
1999-11003
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
279 A.D.2d 563; 719 N.Y.S.2d 289; 2001 N.Y. App. Div. LEXIS 579
December 15, 2000, Argued
January 22, 2001, Decided

PRIOR HISTORY: [**1]

In an action to recover damages for personal injuries, the defendant, the City of New York, appeals from a judgment of the Supreme Court, Kings County (Vaughan, J.), dated October 12, 1999, which, upon a jury verdict awarding the plaintiff the principal sum of $ 200,000 for past pain and suffering and $ 500,000 for future pain and suffering, is in favor of the plaintiff and against it, and the plaintiff, Rene Ramirez, cross-appeals, as limited by his brief, from so much of the same judgment as failed to award him damages for lost earnings.

COUNSEL: Michael D. Hess, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Ellen B. Fishman of counsel), for appellant-respondent.

Sivin & Miller, New York, N.Y. (Edward Sivin and Laurence J. Sass of counsel), for respondent-appellant.

JUDGES: O'Brien, J. P., Santucci, Florio and Schmidt, JJ., concur.

OPINION: [*289] Ordered that the judgment is affirmed, without costs or disbursements.

The uncontroverted evidence established that the plaintiff sustained permanent brain damage as a result of an assault [*290] upon him by police officers. The damages award for past and future pain and suffering does not deviate materially from what [**2] would be reasonable compensation under the circumstances (see, CPLR 5501 [c]; Regis v City of New York, 269 AD2d 515).

The court properly dismissed the plaintiff's claim for lost earnings. The plaintiff testified that he worked occasionally as a security guard and was paid "off the books". He further testified that at the time of the assault, he was unemployed and receiving "social security" benefits. This evidence is insufficient to sustain a lost earnings claim (see, Gomez v City of New York, 260 AD2d 598; Papa v City of New York, 194 AD2d 527; Bailey v Jamaica Buses Co., 210 AD2d 192).

O'Brien, J. P., Santucci, Florio and Schmidt, JJ., concur.

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