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HENRIQUEZ-RODRIGUEZ v. 160 W. 118TH ST. CORP.

Index No. 23380/14. Appeal No. 13689-13689A. Case No. 2019-5774, 2019-01683.

193 A.D.3d 645 (2021)

147 N.Y.S.3d 33

2021 NY Slip Op 02601

Jean Henriquez-Rodriguez, Respondent-Appellant, v. 160 West 118th Street Corp., Appellant-Respondent, et al., Defendant. (And a Third-Party Action.)

Appellate Division of the Supreme Court of New York, First Department.

Decided April 29, 2021.

Attorney(s) appearing for the Case

Shaub Ahmuty Citrin & Spratt, LLP, Lake Success ( Christopher R. Theobalt of counsel), for appellant-respondent.

Diamond and Diamond LLC, Brooklyn ( Stuart Diamond of counsel), for respondent-appellant.

Concur—Webber, J.P., Singh, González, Shulman, JJ.

The witnesses' testimony did not establish plaintiff's lost wages "with reasonable certainty" (Man-Kit Lei v City Univ. of N.Y., 33 A.D.3d 467, 468 [1st Dept 2006], lv denied 8 N.Y.3d 806 [2007]). While plaintiff was paid a daily wage, there was no clear testimony or other evidence as to how many days he worked per week or per year. Accordingly, we calculate his lost earnings based on the mean of his gross income on his tax...

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