Taylor v. Henderson

— Judgment affirmed without costs. Memorandum: In this personal injury action, the court submitted an interrogatory to the jury seeking determinations of both future loss of earnings and future impairment of earning ability. The jury awarded plaintiff $97,500 for future loss of earnings and $25,000 for future impairment of earning ability. Defendant argues for the first time on appeal that the awards are duplicative and should not stand, and that the charge failed to explain any difference between the two concepts.

CPLR 4111 (f) requires itemization of, inter alia, loss of earnings and impairment of earning ability, without defining those terms. The interrogatory submitted by the court followed the suggested itemized verdict charge in PJI 2:301 (3) (1990 Supp) and the "Special Verdict Form” that accompanies that section (1 NY PJI2d 481 [1990 Supp]). However, no suggested charge in NY PJI2d explains the distinction between future loss of earnings and future impairment of earning ability (cf, PJI 2:290) and we find no basis for any distinction.

Although we agree with defendant that the interrogatory was erroneous, we decline to reach this unpreserved error in the exercise of discretion (cf., Iaunow v Hearns, 117 AD2d 992). We find no merit to defendant’s other contentions.

All concur, except Doerr, J. P., and Lawton, J., who dissent in part and vote to modify and grant a new trial on the issue of damages, in accordance with the following Memorandum.