Future lost earnings.

The First Department affirmed the dismissal of the complaint and plaintiff's claim for future lost earnings, in Velasco v. Green-Wood Cemetery, which was decided on February 14, 2008. Plaintiff, who had been granted summary judgment on liability under Labor Law § 240(1), failed to offer evidence responsive to defendants' showing, based on plaintiff's deposition, that plaintiff returned to the same type of work he was doing at the time of the accident only four months after the accident. While the Workers' Compensation Board found that he has a permanent partial disability, and awarded him benefits, the benefits ran for only the four-month period immediately following the accident, and there was no finding that plaintiff was unable to return to work.

Practice point: The expected testimony of a vocational rehabilitation expert and orthopedic surgeon, set forth in expert disclosure notices prepared by plaintiff's attorney, is not evidentiary proof in admissible form, as is required to defeat a meritorious motion for summary judgment.