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GOODKIN v. UNITED STATES

January 18, 1985

Berrill G. GOODKIN and Phyllis Goodkin, Plaintiffs,
v.
UNITED STATES of America, the State of New York, the City of New York, William G. Reichert, John O'Connor, Jules Aaron and Carol Aaron, Defendants; UNITED STATES of America, Defendant & Third-Party Plaintiff, v. STATE OF NEW YORK, Third-Party Defendant.



The opinion of the court was delivered by: WEXLER

WEXLER, District Judge.

I. PRIOR PROCEEDINGS

 This is an automobile accident case. Plaintiffs, who rode in one vehicle, collided with a vehicle owned by defendant USA and operated by its agent. Plaintiffs and defendant USA are "covered persons" within the meaning of New York's Comprehensive Motor Vehicle Insurance Reparations Act (popularly called the "no-fault" law), N.Y. Insurance Law §§ 5101-5108 (formerly §§ 670-678). See § 5102(j) (formerly § 671(10)). Plaintiffs contend that defendant City of New York City ("NYC") was negligent in its maintenance of the highway. Defendant NYC is not a "covered person".

 The facts of plaintiff's case against defendant NYC were tried by jury. Following a trial on liability, the jury returned a special verdict, finding that the relative culpability of the defendants was 30% for the USA and 70% for NYC. Following a trial on damages, the jury returned a special verdict, finding that plaintiff Berrill Goodkin sustained $425,000 damages and that plaintiff Phyllis Goodkin sustained $75,000 damages.

 II. PRELIMINARY FINDINGS OF FACT BY THE COURT

 With respect to plaintiffs' claim against defendant USA and with respect to the defendants' cross claims for contribution, the Court, without regarding itself as being bound by the jury verdicts, makes the following findings of fact:

 1. Plaintiffs sustained injury due to the negligence of defendant NYC and of the agent of defendant USA.

 2. The relative culpability of the defendants is 30% for the USA and 70% for NYC.

 3. Plaintiff Berrill Goodkin sustained $425,000 damages.

 4. Plaintiff Phyllis Goodkin sustained $75,000 damages.

 III. LEGAL CONSEQUENCES OF FINDING OF SPECIAL DAMAGES

 Insurance Law § 5104(a) (formerly § 673(1)) provides in part: "in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for . . . basic economic loss. "

 Insurance Law § 5102(a) (formerly § 671(1)) provides in part:

 (a) "Basic economic loss" means, up to fifty thousand dollars per person of the following combined items, subject to the limitations of section five thousand one hundred eight of this article:

 (1) All necessary expenses incurred for: (i) medical, hospital, surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services: (ii) psychiatric, physical and occupational therapy and rehabilitation: (iii) any non-medical remedial care and treatment rendered in accordance with a religious method of healing recognized by the laws of this state: and (iv) any other professional health services: all without limitation as to time, provided that within one year after the date of the accident causing the injury it is ascertainable that further expenses may be incurred as a result of the injury. For the purpose of determining basic economic loss, the expenses incurred under this paragraph shall be in accordance with the limitations of section five thousand one hundred eight of this article.

 (2) Loss of earnings from work which the person would have performed had he not been injured, and reasonable and necessary expenses incurred by such person in obtaining services in lieu of those that he would have performed for income, up to one thousand dollars per month for not more than three years from the date of the accident causing the injury. An employee who is entitled to receive monetary payments, pursuant to statute or contract with the employer, or who receives voluntary monetary benefits paid for by the employer, by reason of the employee's inability to work because of personal injury arising out of the use or operation of a motor vehicle, is not entitled to receive first party benefits for "loss of earnings from work" to the extent that such monetary payments or benefits from the employer do not result in the employee suffering a reduction in income or a reduction in the employee's level of future benefits arising from a subsequent illness or injury.

 (3) All other reasonable and necessary expenses incurred, up to twenty-five dollars per day for not more than one year from the ...


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