Lawrence Heisler, Brooklyn, NY (Timothy J. O'Shaughnessy
of counsel), for appellants.
O'Toole & Murphy, LLP, New York, NY (David L. Scher
and Christina Mark of counsel), for respondent.
REINALDO E. RIVERA, J.P. CHERYL E. CHAMBERS COLLEEN D. DUFFY
BETSY BARROS, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
defendants appeal, as limited by their brief, from so much of
a judgment of the Supreme Court, Kings County (Velasquez,
J.), entered January 5, 2014, as, upon a jury verdict on the
issue of damages awarding the plaintiff, inter alia, the sums
of $190, 000 for past medical expenses, $80, 000 for past
lost earnings, and $400, 000 for future lost earnings, and
upon an order of the same court dated July 30, 2014, made
after a collateral source hearing, denying that branch of
their motion pursuant to CPLR 4545 which was for a collateral
source setoff, is in favor of the plaintiff and against them
in the total sum of $2, 606, 528.99.
that the judgment is modified, on the law, (1) by deleting
the provision thereof awarding the plaintiff damages in the
principal sum of $80, 000 for past lost earnings, and
substituting therefor a provision awarding damages in the
principal sum of $46, 790 for past lost earnings, and (2) by
deleting the provision thereof awarding damages in the
principal sum of $400, 000 for future lost earnings, and
substituting therefor a provision awarding damages in the
principal sum of $282, 740 for future lost earnings; as so
modified, the judgment is affirmed insofar as appealed from,
without costs or disbursements, and the order dated July 30,
2014, is modified accordingly.
plaintiff, a nursing assistant, was injured in a work-related
accident in 2002. As a result of that accident, she began to
receive Workers' Compensation and Social Security
She attempted to re-enter the workforce, undergoing training
to become a medical assistant. However, while traveling to
one of the final tests for her medical assistant
certification on a bus owned by the defendant New York City
Transit Authority (hereinafter NYCTA) and operated by the
defendant Jimmie Cotton, the plaintiff was further injured
when the bus collided with another vehicle.
plaintiff then commenced this action to recover damages for
the injuries she sustained in connection with the bus
accident. After a trial on the issue of damages, the jury
awarded the plaintiff damages totaling $2, 270, 000,
including, among other awards, the sums of $190, 000 for past
medical expenses, $80, 000 for past lost earnings, and $400,
000 for future lost earnings over 11 years for the job she
likely would have secured as a medical assistant.
defendants then moved pursuant to CPLR 4545, inter alia, for
a collateral source setoff to the awards for past medical
expenses and past and future lost earnings. The Supreme Court
held a collateral source hearing, and, after the hearing,
denied the branch of their motion which was for a collateral
source setoff. The court then entered judgment against the
defendants. The defendants appeal from those portions of the
judgment which awarded the plaintiff the sums of $190, 000
for past medical expenses, $80, 000 for past lost earnings,
and $400, 000 for future lost earnings.
"[a]ctions for personal injury... where the plaintiff
seeks to recover for the cost of medical care, dental care,
custodial care or rehabilitation services, loss of earnings
or other economic loss, evidence shall be admissible for
consideration by the court 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, except for life insurance and
those payments as to which there is a statutory right of
reimbursement" (CPLR 4545[a]). The legislative intent of
CPLR 4545(a) is to "eliminat[e] plaintiffs'
duplicative recoveries" (Oden v Chemung County Inds.
Dev. Agency, 87 N.Y.2d 81, 88; see Fisher v Qualico
Contr. Corp., 98 N.Y.2d 534, 538). "The moving
defendant bears the burden of establishing an entitlement to
a collateral source reduction of an award for past or future
economic loss" (Kihl v Pfeffer, 47 A.D.3d 154,
certainty is understood as involving a quantum of proof that
is greater than a preponderance of evidence but less than
proof beyond a reasonable doubt. Each of the four judicial
departments has interpreted reasonable certainty' as akin
to the clear and convincing evidence standard, that the
result urged by the defendant be highly probable'"
(id. at 163-164, quoting Quezada v
O'Reilly-Green, 24 A.D.3d 744, 746). In order to
determine whether a party has established with
"reasonable certainty" a payment by a collateral
source, the defendants first "must establish with
reasonable certainty that the plaintiff has received, or will
receive, payments from a collateral source" (Kihl v
Pfeffer, 47 A.D.3d at 164), and, second, "that
collateral source payments which have been or will be
received by the plaintiff must be shown to specifically
correspond to particular items of economic loss awarded by
the trier of fact" (id.). "Each case
involving potential future collateral source reductions to
awards for economic loss must be judged on its own unique
facts and merits" (id. at 167).
contrary to the plaintiff's contention, the Workers'
Compensation and Social Security benefits that she was
receiving as a result of the 2002 accident constitute a
collateral source that could potentially offset her award
from this action to recover damages in connection with the
2010 accident. Both the plaintiff and her vocational
rehabilitation specialist testified that the plaintiff's
benefits would have ceased if she had begun to work again.
Therefore, although the
was not receiving Workers' Compensation and Social
Security benefits as a result of the 2010 accident, under the
unique circumstances of this case, those benefits constituted
collateral sources that could potentially offset her award
(see Terranova v New York City Tr. Auth., 49 A.D.3d
10, 19; Kihl v Pfeffer, 47 A.D.3d at 163-167).
the defendants established with reasonable certainty that
since the commencement of the action, the plaintiff had been
receiving Workers' Compensation benefits based upon the
2002 accident in the sum of $205 per week, and would continue
to receive those benefits indefinitely. The plaintiff
testified to this amount at the collateral source hearing,
and also identified a document denominated as a
"stipulation" from the State of New York
Workers' Compensation Board dated November 4, 2009, which
the plaintiff had signed and which stated that she was
receiving $205 per week in benefits. Therefore, the
plaintiff's award for past lost wages must be reduced by
the sum of $33, 210, which represents the weekly $205
Workers' Compensation payments that she received between
June 2, 2010, the date of the accident, and July 18, 2013,
the date of the ...