Marzano v. YSF Realty Corp.

Weston Patterson, J.P,

dissents and votes to affirm the judgment in the following memorandum: In my view, plaintiff failed to *118submit sufficient proof to support an award for lost overtime earnings. As a general rule, fixture lost earnings, including lost overtime, “must be established with reasonable certainty, based on evidence of the plaintiffs earning ability both before and after [his] injuries” (Thomas v Puccio, 270 AD2d 480, 480 [2000]; see also Morgan v Rosselli, 23 AD3d 356, 357 [2005]; Walsh v State of New York, 232 AD2d 939, 940-941 [1996]). Contrary to the opinion of the court…