Matteson v. City of Dunkirk

—Order unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying defendant’s motion to preclude expert testimony pertaining to future lost earnings upon the new trial. Following the first trial, the court granted plaintiffs motion to set aside the verdict insofar as it awarded plaintiff no damages for future pain and suffering and granted a new trial solely on that issue. At the first trial, the court did not submit to the jury the issue of future lost earnings, and no appeal was taken by plaintiff. Thus, plaintiff is precluded by the law of the case from relitigating the issue of future lost earnings (see, Outeiral v Otis El., 220 AD2d 255; see also, Witmer v Smith, 193 AD2d 1080). (Appeal from Order of Supreme Court, Chautauqua County, Gerace, J. — Preclusion.) Present — Greén, J. P., Wisner, Pigott, Jr., Hurlbutt and Scudder, JJ.