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Ebanks v. 945 Fifth Avenue, Inc.

194 A.D.2d 494 Court N.Y. App. Div. Decision date 1993-06-29 English

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p. 494
Ivan A. Ebanks, Respondent, v 945 Fifth Avenue, Inc., Appellant. (And a Third-Party Action.)
[599 NYS2d 564]

—Judgment, Supreme Court, New York County (Carol E. Huff, J.), entered March 12, 1992, upon a verdict in favor of plaintiff

p. 495
and against defendant, awarding damages in the amount of $605,000, unanimously affirmed, with costs.

The references made by plaintiffs counsel during voir dire to plaintiffs "herniated disc” were an immaterial variance with the description of plaintiffs injury in his pleadings and proof at trial as a "bulging disc” and otherwise did not cause defendant any prejudice.

We have reviewed the proof relating to plaintiffs earnings and his inability to return to his former employment as a result of the injury, and find it sufficient to support the award for future loss of earnings. Concur—Rosenberger, J. P., Kupferman, Ross and Kassal, JJ.