Ferrarese v. USAA Casualty Insurance

In an action to recover damages for breach of an insurance contract, the plaintiff appeals from a judgment of the Supreme Court, Richmond County (Lebowitz, J.), entered March 26, 2001, which, upon the granting of the defendant’s motion to dismiss the complaint for failure to establish a prima facie case made at the close of the plaintiffs evidence, is in favor of the defendant and against him.

Ordered that the judgment is affirmed, with costs.

Contrary to the plaintiffs contention, it was incumbent upon him, in this action to recover damages for breach of an insurance contract, to prove his lost earnings with reasonable certainty in establishing the damages element of his prima facie case (see Lloyd v Town of Wheatfield, 67 NY2d 809; Wenger v Alidad, 265 AD2d 322; Haven v Donro Realty Corp., 121 AD2d 504). Since the plaintiff did not introduce any evidence at trial to verify his 1989 income, the Supreme Court properly dismissed his complaint at the conclusion of his case.

Additionally, without determining whether the court’s preclusion of the testimony of two of the plaintiffs witnesses was proper, any error was harmless because these witnesses, a claims adjuster and his supervisor, would not have been able to remedy the gap in the plaintiffs prima facie case (see CPLR 2002; Wolosin v Campo, 256 AD2d 332; Cave v Foley, 234 AD2d 410; Cotter v Mercedes-Benz Manhattan, 108 AD2d 173). Florio, J.P., Smith, Krausman and Townes, JJ., concur.