Zapata v. City of New York

Fein, J. (dissenting in part).

I concur with Justice Asch and with his reasons for affirming in toto. I would add only that it stands undisputed on the record that at a calendar conference, some five weeks before the trial, plaintiffs’ attorney made known to defendants’ attorneys that testimony in support of the claim for future lost earnings would be offered upon the trial. No claim of surprise or other apparent objection was then made. No application was made for time to prepare to defend against the claim. It is difficult to accept the conclusion that these defendants were unaware, until the proffer of such testimony, that an infant as impaired as this plaintiff would sustain a substantial loss of earnings over his lifetime.