Tassone v. Mid-Valley Oil Co.Tassone v. Mid-Valley Oil Co.
Appeal from a judgment of the Supreme Court (Connor, J.), entered January 30, 2003 in Columbia County, upon a verdict rendered in favor of plaintiff.
Plaintiff, then 22 years old, sustained severe personal injuries when he fell from the rоof of defendant’s Xtra Mart store while installing a satellite communication system. A more thorough recitаtion of the underlying facts in this matter may be found in a prior decision of this Court (
Thereаfter, Supreme Court held a CPLR article 50-B hearing at which the parties’ experts testified regarding, among оther things, the selection of an appropriate discount rate. Supreme Court determined that the appropriate discount rate was 5.15% and judgment was entered accordingly. Defendant appeals and we now affirm.
Initially, defendant asserts that the jury’s award for future loss of income was speculative and based upon inadequate proof. A plaintiff bears the burden of proving loss of wages, which must be established with reasonable certainty (see Faas v State of New York,
Here, in assessing lost future earnings, plaintiffs economist relied upon plaintiffs age and incomе level at the time of the accident, the normal work-life expectancy for an individual in plaintiffs profession, plaintiffs work experience and track record as a hard worker, his extensive training in еlectronic communications while in the Army, a letter from his employer regarding plaintiffs employment prospects, his acceptance into the union at the third highest electrical union rating, testimony from a rehabilitation counselor that plaintiff would have reached “journeyman status” in the union, and the projected salary of a journeyman electrician with a 4% increase per year for inflation. The economist concluded that plaintiff’s loss of future income was approximately $5 million. Given thе economist’s testimony, the evidence upon which he relied and the reasonable assumptions whiсh he drew from that evidence, we cannot say that the jury’s award of $4,264,578 for future loss of income “deviates materially from what would be reasonable compensation” (CPLR 5501 [c]; see Laguesse v Storytown U.S.A., 296
Although defendant now asserts that the economist improperly relied upon inadmissible hearsay in the form of a letter from plaintiff’s employer describing plaintiff’s potential for advancement, this argument is unpreserved inasmuch as defendant failed to raise its objection before Supreme Court. Morever, were we to address defendant’s argument in the interest of justice, we would reject it as meritless. “[A]n expert may rely on out-of-court matеrial if ‘it is of a kind accepted in the profession as reliable in forming a professional opinion’ ” (Hambsch v New York City Tr. Auth.,
We further reject defendant’s argument that Supreme Cоurt erred in using 5.15% as a discount rate in determining the present value of the required annuity contract that will prоvide payment of a portion of the future damages in periodic installments (see CPLR 5041 [e]). Defendant asserts that the 5.15% rate is based on an investment plan—in which the economist averaged the yield for 3-month, 6-month, 10-year and 30-year United States Treasury securities adjusted upward to account for an abnormally low rate on the short term securities—that is too conservative. Defendant urges instead that the interest rate shоuld be based upon a mix of conservative investment-grade securities, such as an average of 30-year treasury bonds with telephone bonds at different maturities, short and long term, yielding a rate of 6.6%. We note that the statute does not mandate the use of any particular discount rate (see CPLR 5041 [e]; Bermeo v Atakent,
We have considered the parties’ remaining arguments and conclude that they are either unpreserved for our review or lacking in merit.
Crew III, Carpinello, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.