New York Supreme and/or Appellate Courts Appellate Division, First Department
April 12, 2012
Fisher v Mascardo
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 12, 2012
Mazzarelli, J.P., Catterson, DeGrasse, Manazanet-Daniels, Roman, JJ.
Judgment, Supreme Court, New York County (Donna M. Mills, J.), entered February 24, 2011, awarding plaintiff damages, and bringing up for review an order, same court and Justice, entered February 9, 2011, which determined, following a collateral source hearing, that the verdict of the jury in favor of plaintiff totaling $358,480.00 was to be offset by a total of $8,210.00, resulting in an award for damages in the amount of $350,270.00 plus statutory interest from the date of loss, unanimously affirmed, with costs.
In this action for recovery of damages to plaintiff's vintage and antique clothing collection, defendant failed to demonstrate by clear and convincing evidence that there was a direct, close correspondence, i.e., a match, between the collateral source payments and the items of loss to be replaced (Johnson v New York City Tr. Auth., 88 AD3d 321, 327-328 ). Defendant failed to show a "match" on the actual value of the items lost, the value of the items as awarded by the jury, and the amount paid by the insurance company. Under these circumstances, there was simply insufficient evidence to show that plaintiff had received a windfall or double recovery.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 12, 2012
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