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Peralta v. Quintero

United States District Court, S.D. New York

January 26, 2015

LUIS E. QUINTERO, et ano., Defendants

For Alvin Peralta, Plaintiff: Joshua Brian Irwin, LEAD ATTORNEY, Gregory J. Cannata, Esq., New York, NY.

For Luis E. Quintero, Daniel J. Gonsalves, Defendants: John M. Downing, Jr, LEAD ATTORNEY, Downing & Peck, P.C., New York, NY.


FRANK MAAS, United States Magistrate Judge.

This personal injury action was removed to this Court from Supreme Court, Bronx County, on May 15, 2012. The defendants did not file a jury demand until 588 days later. In the absence of any rationale for their delay other than mere inadvertence, I found that the defendants had waived their right to a jury trial. The case then was tried before me on January 7-9 and 13, 2014. On May 20, 2014, after considering the evidence at that trial, as well as the parties' post-trial submissions. I made findings of fact and conclusions of law with respect to the issues of liability and damages pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. (See ECF No. 85). Because neither side had ordered the trial transcript, I did so based on my recollection of the trial testimony.

Subsequently, the Defendants moved under Rule 52 of the Federal Rules of Civil Procedure for an order " vacating and reversing" my prior Memorandum Decision and Order and dismissing this action. (ECF No. 87). Defense counsel did so without the benefit of a trial transcript, advancing claims that were inconsistent with my own recollection. Accordingly, I directed defense counsel to order the transcript and set a briefing schedule. (ECF No. 96). Having reviewed the transcript, I now make minor modifications to my prior findings and conclusions in this Amended Memorandum Decision and Order. I also address the Defendants' post-trial motion. For the reasons set forth below, I still find the Defendants liable for the accident and award the damages previously determined, subject to any statutory set-off for collateral sources to which the Defendants may be entitled.

I. Liability

A. Findings of Fact

On March 6, 2010, shortly before midnight, plaintiff Alvin Peralta (" Peralta") was driving his 1992 Honda Accord northbound on Eldridge Street on the lower east side of Manhattan. His friend Melvin J. Sanchez (" Sanchez") was in the front passenger seat of the car. (Tr. 54, 116-17; Ex. 3).[1]

As Peralta approached the intersection of Eldridge and Rivington Street, a 2006 Volkswagen Jetta driven by defendant Luis Quintero (" Quintero") was traveling westbound on Rivington Street and was approaching the Eldridge Street intersection. (Tr. 54-55; Ex. 3). The owner of the Jetta. Daniel Gonsalves (" Gonsalves") was in the front passenger seat. (Tr. 120; G. 10).

The parties agree that there was a stop sign on Rivington Street, but not on Eldridge Street, where the two streets intersected. (Tr. 39, 52-53; Ex. 3). The parties further agree that both streets are one-way streets. (Tr. 53). Whether Quintero stopped at the stop sign and what happened afterwards are the critical liability issues. Peralta contends that Quintero failed to yield to his passing vehicle and " crashed" into the passenger side of the Accord with a " big impact, " causing the vehicle to move to the left and a passenger side air bag to inflate.[2] (Id. at 117, 120, 146-47, 154). Peralta further contends that the impact was sufficient to cause both passenger-side doors of his Accord to deform, although they still could be opened and closed with difficulty, and that the vehicle's alignment was adversely affected. (Id. at 118-19, 159-60). Peralta testified that he disposed of the vehicle by taking it to a junk yard after a month or two because it was " not safe to drive." (Id. at 145).

Quintero testified, to the contrary, that he came to a full stop and was inching into the intersection to make a right turn when Peralta's car suddenly swerved around him. (Id. at 55, 57, 64-65). He described the Accord's speed as faster than normal, but conceded that he did not know if Peralta was traveling more than thirty miles per hour. (Id. at 63-64). Curiously, Quintero maintains that there was no accident. (Id. at 56, 65). According to Quintero, even though he could have continued on Eldridge Street after making his right turn, both he and Gonsalves got out of their car after Peralta's car stopped because they felt " something" might have happened. (Id. at 57-59, 70). Consistent with this rendition of events, Quintero testified that the police were called to the scene even though there was no damage to either vehicle. (Id. at 55, 65).

Gonsalves did not testily at trial, but his deposition transcript was received into evidence. Gonsalves agreed with Quintero that there was no accident. (G. 29) Gonsalves further stated that he first saw Peralta's vehicle when Quintero " began to go through the intersection." (Id. at 21). He also maintained, contrary to the testimony of every other witness, that there were four people in Peralta's Accord. (Id. at 27-28).

Simply put, the defense version of events makes no sense. First, if Quintero had successfully been making a right turn as Peralta swerved around him, there would have been no reason for Quintero to stop or for him and his passenger to exit their car. Second, although Quintero claimed that there was no impact, Police Officer Ian Chi Kei, who responded to the scene, prepared a Police Accident Report in which he noted that " Veh. 2 [Quintero's Jetta] stated he was going straight while veh. 1 [Peralta's Accord] speeded and caused veh. 2 to hit veh. 1." (Tr. 13-17; Ex. 1 at 1). Presumably, if there was no physical evidence that a motor vehicle accident had occurred, or if Quintero or Gonsalves had so stated, the officer preparing the report would have made note of what might prove to be a fraudulent insurance claim. Third, although Quintero testified that he was making a right turn just before the non-accident, the police report indicates that " veh[icle] 2" -- presumably either Quintero or Gonsalves -- stated that their vehicle was " going straight" when the accident occurred. (Ex. 1 at 1). Consistent with that description, the police diagram of the incident reflects a " t-bone" collision in which Quintero struck the middle of the passenger side of Peralta's car. (Id.). Fourth, the officer personally observed damage to the passenger side of Peralta' Accord and the front of Quintero's Jetta. (Tr. 17-18). Finally, Sanchez requested medical attention and was taken from the scene by ambulance. (Id. at 40). If the police thought the accident or Sanchez's medical complaints were feigned, the accident report presumably would have contained a notation to that effect. Instead, the report identifies Sanchez as a person " injured" in the accident. (Ex. 1 at 2).

B. Conclusions of Law

As Magistrate Judge Poliak has explained, " [u]nder New York law, the plaintiff must establish three elements in order to prevail on a negligence claim: (1) that defendant owed plaintiff a duty of care; (2) that defendant breached that duty; and (3) that the breach was the proximate cause of plaintiffs' injuries." Hodder v. United States, 328 F.Supp.2d 335, 341 (E.D.N.Y. 2004). Further, " it is the duty of both drivers to operate their automobiles with reasonable care, taking into account the actual and potential dangers existing from weather, road, traffic and other conditions." Id. (citations omitted). When a driver nears an intersection controlled by a stop sign, he must come to a stop, and " after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection." N.Y.S. Vehicle and Traffic Law § 1142(a).[3]

Here, because Quintero failed to yield the right of way to Peralta, and because there is no indication that Peralta was speeding, Quintero plainly was negligent. Indeed, his failure to obey the Vehicle and Traffic Law constitutes negligence per se. Barbieri v. Vokoun, 72 A.D.3d 853, 900 N.Y.S.2d 315, 318 (2d Dep't 2010).

II. Damages

A. Findings of Fact

Unlike Sanchez, Peralta did not request medical attention at the scene. A day or two later, however, he sought medical attention for worsening lower back, neck, and shoulder pain, (Tr. 121-22). He first went to Davidson Medical, P.C., where he was provided conservative treatment including chiropractic services, electrostimulation, and massage. (Id. at 122-26, 170). On March 31, 2010, he underwent a CAT scan at Socrates Medical Health. (Id. at 333). On April 22, 2010, he also had an MRI of his lumbar spine. (Id. at 84, 246). He stopped going to Davidson Medical after about four months because the treatment " wasn't working." (Id. at 127-28).

During this same approximate time period, Peralta engaged in certain work activities. Among other things, he baby sat, drove a livery car, performed odd jobs, delivered groceries, and, despite his pain, worked as a waiter. (Id. at 133-34, 174-78, 184-85, 190-92).

In April 2011, Peralta visited Dr. Philip Rafiy, an orthopedic surgeon whose name he found on the internet. (Id. at 128). Upon physical examination, Peralta displayed restricted lateral bending to the right and left and restricted flexion and extension, and he tested positive on various subjective tests. (Id. at 233-37). Peralta's left SI reflex response also was diminished. (Id. at 238). Like Davidson Medical, Dr. Rafiy began his treatment of Peralta with conservative measures, including steroidal injections. (Id. at 128-29, 262-68). Peralta also attended the University Heights Medical Center for other conservative treatment modalities recommended by Dr. Rafiy. (Id. at 129-30, 262). Although Peralta described his pain to Dr. Rafiy as " severe, " after his initial examination, Dr. Rafiy characterized Peralta's pain level as only " moderate." (Id. at 233-34). Eventually, after reviewing various radiological images, Dr. Rafiy concluded that Peralta's pain was caused by foraminal stenosis at the L4-L5 level.[4] (Id. at 250, 253). Dr. Rafiy agreed with the defense experts that Peralta had no degenerative changes in his lumbar spine or vertebral bodies that were protruding into the spinal canal. (Id. at 242, 244, 251-52). He nevertheless concluded from radiological studies taken on April 22, 2010, approximately six weeks after the accident, that disc material extending into the neural foramen was causing stenosis at the L4-L5 level on Peralta's left side. According to Dr. Rafiy, this injury was caused by the accident in 2010 and was the competent producing cause of Peralta's pain. (Id. at 249-50, 252-53). Dr. Rafiy eventually recommended surgery after other treatment modalities failed to alleviate Peralta's pain, (Id. at 131, 253-54).

On July 22, 2011, Dr. Rafiy performed a laminotomy and foraminotomy, removing bone at the L4-L5 level and widening the vertebral foramen. (Id. at 269-70). Dr. Rafiy stabilized the right side of Peralta's spine using a pin and rod and also performed bone grafts on both sides of Peralta's spine to stabilize Peralta's back.[5] (Id. at 270-71). Dr. Rafiy testified that the surgery was necessitated by injuries that Peralta had sustained during the 2010 accident. (Id. at 272-73).

Although the surgery helped alleviate Peralta's pain, he became addicted to the Oxycontin tablets that Dr. Rafiy prescribed to help manage residual pain. (Id. at 132, 196, 281). Also, despite the surgery, Peralta had reduced lumbar flexion and extension. (Id. at 277-78). Dr. Rafiy characterized this as a " permanent partial loss" of use of the lower lumbar segment of Peralta's spine caused by the accident. (Id. at 278-79). Dr. Rafiy further found that the accident caused Peralta to have a permanent partial restriction in his ability to lift, pull, carry, stoop, crawl, and crouch. (See id. at 280). I adopt both of these findings.

In an effort to show that the surgery was unnecessary, the defendants proffered two experts. Dr. David Fisher, a radiologist, testified that imaging studies showed normally-aligned vertebral bodies and no protrusions of the lumbar spine or traumatic injury that would have justified the surgery. (Id. at 83-86; Exs. L 1-3). Dr. Fisher, however, did not address any changes in the neural foramen on Peralta's left side at the L4-L5 level. He essentially said simply that Peralta's spine appeared normal, a finding that Dr. Rafiy did not dispute.

Dr. Edward Crane, an orthopedic surgeon at Lenox Hill Hospital, examined Peralta in October 2012, at which time Peralta allegedly complained of a " little pain" in his lower back and thigh. (Tr. 423-24). Dr. Crane indicated that the results of his physical examination were essentially normal (except to the extent that Peralta feigned pain on a straight leg raising test), that the surgery performed could hot be causally connected to the alleged injury on March 6, 2010, and that Peralta had no sequelae from the surgery other than his scar. (Id. at 428-38, 441). He conceded, however, that the Oxycontin that Peralta had been taking could affect the results of his physical examination -- for example, by masking pain. (Id. at 471-73, 483).

Although Peralta had a prior motor vehicle accident in 2008, he testified that he sustained no injuries at that time. (Id. at 115-16; see also id. at 232). There further is no indication that any of Peralta's complaints regarding back pain are attributable to the earlier accident or anything else that preceded the events of March 6, 2010. Indeed, Dr. Rafiy testified that any injuries sustained in 2008 would have led to degenerative changes that would have been visible on the radiological studies in 2010. (Id. at 245), No such changes appear on those studies. (Id. at 244). There also is no indication that Peralta was a user of Oxycontin prior to the collision in 2010. In these circumstances, it simply defies credulity to suggest that Peralta would have opted for a procedure as invasive as back surgery unless he truly was in pain as a result of being broadsided by Quintero's vehicle. In that regard, I specifically credit Dr. Rafiy's testimony that the stenosis that he corrected was proximately caused by the 2010 accident and was the source of Peralta's pain.[6]

After the surgery, Peralta's pain level on a 10-point scale went from a " 7" or " 8" with treatment to a " 6, " and he concedes that he now experiences less pain than he did before surgery. (Id. at 132). He also occasionally engages in sports such as handball, despite his continued pain. (Id. at 123).

To earn money, Peralta drove for a car service for several months after his surgery, during which time he switched to a larger, more expensive vehicle because the seating was more comfortable. Peralta also made deliveries and performed other chores for a pizzeria owned by his aunt. (Id. at 133, 175-76, 190-91).

As noted above, the Oxycontin that Peralta takes to manage his pain has caused him to have a substance abuse problem. At the time of the trial, Peralta was taking four or five Oxycontin pills per day. (Id. at 134-35). On the date of his deposition in 2011, Peralta took seven or eight such pills in a four-hour period because the wet weather exacerbated his pain. (Id. at 135-36). Dr. Rafiy described Peralta's condition as a chemical dependency secondary to his injury, which will require extensive inpatient or outpatient treatment to cure. (Id. at 282). Dr. Rafiy estimated that this treatment would cost $60-75, 000 at a residential facility or $30, 000 if provided on an outpatient basis. (Id. at 283-84).

Peralta does not make any claim for lost wages. The damages he does seek consist of various anticipated ongoing expenses for health care and a gym membership, plus money to compensate him for his pain and suffering. According to Dr. Rafiy, Peralta has a permanent loss of flexion and extension in his lower back as well as diminished reflexes. Dr. Rafiy opined that this amounts to a permanent partial limitation of Peralta's use of his spine. Dr. Rafiy further testified that Peralta's condition will require two visits to an orthopedic expert each year, at a cost of $700 per year; an MRI every two to three years, at a cost of $1300 per scan; pain injections three to four times per year, at a cost of $950 per visit; and a gym membership for ten years. Since Peralta was twenty-three years old at the time of trial, (see id. at 284-86), he has a life expectancy of approximately fifty-two years. (See Bureau of Labor Statistics, Expectation of Life at Birth, 1970-2008, and Projections, available at

B. Conclusions of Law

Under New York's No-Fault Law, a plaintiff injured in an automobile accident may not recover damages for non-economic losses unless he has sustained a " serious injury, " N.Y. Ins. Law § 5104. Although a " serious injury" may be established in several different ways, in this case Peralta contends that he has suffered a permanent loss of range of motion in his spine. Under the No-Fault Law, such a permanent consequential limitation of the use of a body or member constitutes a serious injury. Id. § 5102(d).

Quintero seeks to refute Peralta's showing that he sustained a serious injury in several ways. First, he contends that Dr, Rafiy's testimony was insufficient to meet Peralta's burden because there were no range of motion studies conducted immediately after the accident. Within a matter of days, however, Peralta went to Davidson Medical complaining of, inter alia, middle and lower back pain and stiffness (as well as left shoulder pain). Although a range of motion study from that same month apparently does not reflect extensive limitations in Peralta's range of motion, Peralta nonetheless frequently complained of lower back pain and spasms. He evidently also was in sufficient pain that he sought Dr. Rafiy's assistance in 2011. Dr. Rafiy, in turn, diagnosed Peralta as having stenosis at the L4-L5 level caused by disc material protruding into the neural foramen. Furthermore, treating this problem eventually required surgery and the placement of instrumentation to stabilize Peralta's spine. In these circumstances, it is apparent that Peralta suffered a " serious injury" entitling him to recover non-economic damages. See N.Y. Ins. Law § § 5102(d), 5104. To the extent that the two medical experts called by Quintero disputed Dr. Rafiy's testimony that Peralta had sustained a serious injury proximately caused by the 2010 accident, I do not credit their testimony.

Quintero also argues, based on the testimony of defense experts, that Peralta's continuing back problems are not causally related to the March 2010 accident because the surgical procedures performed by Dr. Rafiy were not medically necessary, but instead were performed for Dr. Rafiy's financial gain. Quintero further attacks Dr. Rafiy's credibility on numerous grounds.

There is no reason to believe that Dr. Rafiy performed surgery on Peralta's spine simply for financial gain. Moreover, it defies credulity to argue that Peralta would have opted for an invasive surgical procedure, accompanied by the placement of instrumentation in his spine, simply to bolster his damages case. Indeed, the only logical conclusion from Peralta's willingness to undergo surgery after other treatment modalities failed is that he was, indeed, in considerable pain.

Moreover, even if Quintero were able to establish that Dr. Rafiy's decision to perform surgery constituted medical malpractice, that would not be a basis for Quintero to escape financial responsibility for the surgery's sequelae. Indeed, it is settled law in New York that a tortfeasor is responsible for the subsequent negligence of a physician because " their wrongs coalesced and resulted in damage which would not have been sustained but for the original injury." Milks v. Mclver, 264 N.Y 267, 269-70, 190 N.E. 487 (1934); see Musco v. Conte, 22 A.D.2d 121, 254 N.Y.S.2d 589, 594 (2d Dep't 1964) (defendant whose wrongful act caused injury aggravated by physician's negligence may be liable to plaintiff for full damages, subject to the defendant's right to seek indemnity).

C. Amounts to be Awarded

Turning first to Peralta's economic damages, I credit Dr. Rafiy's testimony that Peralta likely will need continuing orthopedic care for the rest of his life by virtue of the accident and subsequent surgery. (Tr. 284-86). Accordingly, I award Peralta $60, 000 for future medical expenses. There is no indication, however, that Peralta made any attempt to attend a gym after his surgery or has the inclination or need to pursue what amounts to a frill. I therefore decline to award the money requested by Peralta for a gym membership, (See id. at 368-69). Similarly, while I do not doubt that Peralta has suffered pain and continues to suffer pain, my own observations of him during the trial cause me to believe that at least some of the physical discomfort he sought to exhibit both on and off the stand during the trial was feigned. I therefore decline to award Peralta the $1, 000, 000 for pain and suffering that he seeks and instead award him $100, 000 for past pain and suffering and $250, 000 for future pain and suffering. Finally, although Peralta testified that he is addicted to Oxycontin and Dr. Rafiy -- who curiously has continued to prescribe the drug -- evidently agrees, there is no indication that Dr. Rafiy has particular expertise in the field of substance abuse, much less knowledge regarding the current cost and necessary duration of treatment programs. For this reason, I decline to award any damages for the treatment of Peralta's alleged addiction.

III. Post-Decision Motion

In their post-decision motion pursuant to Rule 52, the Defendants raise a host of arguments, many of which are simply a rehash of their prior submissions. For example, they continue to maintain that there was no accident. (Downing Affirm. at 4). The new arguments that they raise do not persuade me that there is any reason to reach a different conclusion with respect to the issues of liability and damages. Neverthleless, I will briefly address their two principal contentions.

A. Serious Injury

Citing the New York Court of Appeals decision in Perl v. Meher, 18 N.Y.3d 208, 960 N.E.2d 424, 936 N.Y.S.2d 655 (2011), the Defendants argue that Peralta failed to establish that he sustained a serious injury within the meaning of the No-Fault Law. The Defendants concede that Perl does not require that there be quantitative measurements of restricted range of motion shortly after an alleged accident, but maintain that there must be " objective evidence [of a serious injury] shortly after or within a reasonably short period of time after the incident, " (Id. at 9).

In Perl, the Court of Appeals considered three companion cases in which the Appellate Divisions had concluded, as a matter of law, that " serious injury" had not been shown. Rejecting the suggestion that there must be quantitative range of motion measurements soon after an accident, the court reaffirmed its holding in Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 774 N.E.2d 1197, 746 N.Y.S.2d 865 (2002), that a physician's " qualitative assessment of a plaintiff's condition . . . may suffice, provided that the evaluation has an objective basis and compares the plaintiff's limitations to the normal function, purpose and use of the affected body organ, member, function or system." Perl, 18 N.Y.3d at 217 (emphasis in original). The clear purpose of both Perl and Toure was, at least in part, to ensure that mere soft-tissue injuries were not considered " serious." Id. at 214.

In this case, Peralta did not seek medical attention at the accident scene. Nonetheless, only two days after it occurred, he went to Davidson Medical complaining of, inter alia, lower back pain. He then underwent a course of treatment at Davidson Medical which included chiropractic services and massage.

Peralta contends that he produced objective evidence of a serious injury through the testimony of Dr. Rafiy, who first treated Peralta more than a year after the accident. During his testimony, Dr. Rafiy described the sort of treatment that Peralta had received at Davidson Medical based on his review of that facility's files. (Tr. 258-61). Although the Court also received Dr. Rafiy's file, which included the Davidson Medical records, into evidence for " whatever limited weight [it] might have, " (see id. at 256; Ex. 6), the fact remains that no witness laid a foundation for the admissibility of the third-party records contained within that file. Accordingly, in the absence of any testimony by witnesses who actually treated Peralta at Davidson Medical, the Court cannot find simply on the basis of the unauthenticated records in Dr. Rafiy's file that there is objective evidence that Peralta sustained a serious injury in 2010.

On the other hand, as Dr. Rafiy testified, an MRI taken on April 22, 2010, only six weeks after the accident, reflects foraminal narrowing at the L4-L5 levels caused by disc material protruding into the left neural foramen. (Id. at 241-49). This foraminal problem is visible on an MRI taken shortly after the accident and therefore constitutes reasonably contemporaneous objective evidence that Peralta had sustained a " serious injury" within the meaning of the No-Fault Law in 2010.

There remains the issue of causation. During his testimony, Dr. Rafiy candidly conceded that " one is unable to determine the actual date of the protrusion occurrence, based on a film review alone." (Id. at 313). There was, however, no indication that Peralta had sustained any injuries or made any complaints of pain after his 2008 accident. Indeed, Peralta expressly denied having been injured during that accident. (Id. at 115-16). In Perl, the Court of Appeals reversed the Appellate Division's grant of summary judgment to the defendants because the " treating physician . . . opined that since Perl 'had not suffered any similar symptoms before the accident or had any prior injuries/medical conditions that would result in [positive] findings, ' the findings were causally related to the accident." Perl, 18 N.Y.3d at 219. Although the court acknowledged that an 82-year old man might well have suffered " significant degenerative changes" prior to the accident, it found that it could not say " as a matter of law . . . that such changes were the sole cause of Perl's injuries." Id.

Here too, Dr. Rafiy, a treating physician, gave testimony to the same effect, including the following:

Q. Did you have an opinion as of March 28 2013 as to whether or not Mr. Peralta's condition was permanent relating to his ability to use his lumbar spine?
A. Yes.
Q. And whether or not his limitations of range of motion were permanent at that point in time.
A. Yes.
Q. And do you have the same opinion today?
A. Yes.
Q. And do you have an opinion to a reasonable degree of medical certainty as to whether or not Mr. Peralta has suffered a limitation of use of his lumbar spine.
A. Yes.
Q. What is that opinion?
A. It is my opinion that Mr. Peralta has sustained a permanent partial loss of use of the lower lumbar segment of his lumbar spine.
Q. What is the basis of that opinion?
A. My opinion is based on his multiple records that I have reviewed, the multiple neurologic exams, the lumbar spine examinations, the MRI films of the lower back, as well as the radiological studies, as well as the lumbar surgical procedure performed [which] are consistent with a permanent alteration of the lower back.
Q. And do you have an opinion to a reasonable degree of medical certainty as to whether or not the automobile accident Mr. Peralta was involved in on March 6, 2010 was the competent producing cause of the limitation?
A. Yes.
Q. What is that opinion?
A. It is my opinion that the competent producing cause of the lumbar spine restriction with resulting loss of use, partial loss of use of the lower back is related to the March 6, 2010 accident.
Q. Is that to a reasonable degree of medical certainty?
A. Yes, it is.

(Tr. 278-79) (emphasis added).

In sum, contrary to the Defendants' assertions, the decision in Perl does not mandate an outcome different than that reached in my prior Memorandum Decision and Order.

B. Collateral Source Set-off

Citing Section 4545 of the New York Civil Practice Law and Rules (" CPLR"), the Defendants contend that the Court's $60, 000 award for future medical expenses " must be reduced by the amount remaining under [Peralta's] . . . no-fault coverage . .., Affordable Care Act Coverage, and Medical Coverage." (Downing Affirm at 15). The Defendants further append to their motion papers documents purportedly showing that Peralta received Medicaid benefits for the treatment of his injuries through the date of his trial. (Id. & Ex. A).

Section 4545(a) of the CPLR provides, in part, that in a personal injury action in which

the plaintiff seeks to recover for the cost of medical care, . . . evidence shall be admissible . . . to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source [such as insurance, ] except for life insurance . . . . If the court finds that any such cost or expense was or will, with reasonable certainty, be replaced or indemnified from any such collateral source, it shall reduce the amount of the award by such finding, minus an amount equal to the premiums paid by the plaintiff for such benefits for the two-year period immediately preceding the accrual of such action and minus an amount equal to the projected future cost to the plaintiff of maintaining such benefits.

CPLR § 4545(a). The statute thus partially abrogates the common law " collateral source rule, " which precluded a defendant from seeking a set-off for damages caused by his own negligence. Kish v. Bd. of Educ. of the City of N.Y., 76 N.Y.2d 379, 384, 558 N.E.2d 1159, 559 N.Y.S.2d 687 (1990). Although evidence regarding such collateral sources could easily have been introduced during this trial without prejudicing Peralta because it was a non-jury trial, it probably is not improper for the Defendants to raise this issue at this stage.[7]

Peralta contends that a post-trial collateral source hearing would be a waste of time for several reasons. First, with respect to Medicaid, Peralta claims that he will be ineligible for coverage once the Defendants honor the judgment in this case. (Poznanski Aff. at 8-9). Peralta also maintains that Medicaid will seek reimbursement for his past medical treatment related to the accident. (Id. at 9), Peralta's counsel further represents, albeit only on information and belief, that " Peralta lost his Medicaid coverage shortly after the trial." (Id.).

Turning to No-Fault Coverage, Peralta contends that there are no benefits that can offset the judgment for future medical expenses because his No-Fault claim has been denied. (Id. at 8).

Finally, Peralta notes the absence of any showing that he has Affordable Care Act coverage, contending that even if he did, the " premiums alone for the rest of his life would undoubtedly equal the full amount of the future medical treatment awarded by th[e] Court, " (Id.).

Under the CPLR, it is the Defendants' burden to establish with reasonable certainty that Peralta's future medical expenses will be offset by a collateral source " pursuant to a contract or otherwise enforceable agreement." CPLR § 4545(a). Here, for the reasons set forth above, it is far from clear that the Defendants will be able to make the requisite showing at a collateral source hearing should one be held. Nevertheless, the level of proof necessary to secure a hearing is lower than that which is necessary to prevail at the hearing. See, e.g., Firmes v. Chase Manhattan Auto. Fin. Corp., 50 A.D.3d 18, 852 N.Y.S.2d 148, 162-63 (2d Dep't 2008). To secure a hearing, a defendant need only " tender some competent evidence from available sources that the plaintiff's economic losses may in the past have been, or may in the future be, replaced, or the plaintiff indemnified, from collateral sources." Id. at 162. In Firmes, the Appellate Division noted that one such source could be documents subpoenaed to the courthouse. At least with respect to Medicaid, it appears that the Defendants did subpoena records -- presumably with notice to Peralta's counsel. The Defendants therefore have met the relatively low threshold required to secure a collateral source hearing.

The Court consequently will hold a hearing -- provided that there is some admissible evidence that the Defendants can proffer regarding collateral sources. Counsel therefore are directed to confer in advance of that hearing in an effort to determine whether there is any triable issue of fact and whether it is possible to stipulate as to the financial effect of any potentially available collateral sources.

IV. Conclusion

For the foregoing reasons, the Court adheres to its prior determination that Peralta is entitled to recover the sum of $410, 000 against the Defendants, but will hold a collateral source hearing in Courtroom 20A, on February 27, 2015, at 2 p.m., to determine whether the Defendants are entitled to any set-offs.


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