Opinion
526628
03-07-2019
Mark FABIANO et al., Appellants–Respondents, v. STATE of New York, Respondent—Appellant.
Sacks & Sacks, LLP, New York City (Scott N. Singer of counsel), for appellants-respondents. Roemer Wallens Gold & Mineaux, LLP, Albany (Matthew J. Kelly of counsel), for respondent-appellant.
Sacks & Sacks, LLP, New York City (Scott N. Singer of counsel), for appellants-respondents.
Roemer Wallens Gold & Mineaux, LLP, Albany (Matthew J. Kelly of counsel), for respondent-appellant.
Before: Egan Jr., J.P., Lynch, Devine, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Devine, J. Cross appeals from a judgment of the Court of Claims (Milano, J.), entered November 21, 2017, upon a decision of the court in favor of claimants.
Claimant Mark Fabiano, a bridge painter, was injured in 2011 when he fell from scaffolding while working. Fabiano and his wife, derivatively, brought this claim to recover damages. The Court of Claims granted summary judgment to claimants on the issue of liability under Labor Law § 240(1) ( 123 A.D.3d 1262, 1263–1264, 999 N.Y.S.2d 217 [2014], lv dismissed 25 N.Y.3d 957, 8 N.Y.S.3d 253, 30 N.E.3d 896 [2015] ) and proceeded to a bench trial on the issue of damages. Thereafter, the court issued a decision awarding claimants approximately $ 2.4 million in damages. Among the damages were $ 400,000 for Fabiano's past pain and suffering and $ 600,000 for his future pain and suffering, as well as $ 25,000 to his wife for past and future loss of services.
Judgment could not be entered until questions regarding the appropriate structure of the judgment (see CPLR art 50–B) and collateral source payments (see CPLR 4545[a] ) were resolved, and a hearing ensued. Defendant noted that Fabiano has an established workers' compensation claim entitling him to medical care at reduced rates and, asserting that his future medical expenses could be reduced to reflect those lower rates, subpoenaed records and testimony from the nonparty claims administrator of his employer's workers' compensation insurance policy. The claims administrator successfully moved to quash those subpoenas. The parties then reached agreement on the final form of the judgment, which was issued by the Court of Claims. Claimants appeal and defendant cross-appeals from the judgment.
We affirm. Claimants argue that that the damages awarded to Fabiano for past and future pain and suffering and to his wife for past and future loss of services are inadequate and "deviate[ ] materially from what would be reasonable compensation" ( CPLR 5501[c] ; see Xiaokang Xu v. Xiaoling Shirley He, 147 A.D.3d 1223, 1223, 48 N.Y.S.3d 530 [2017] ; Morrisseau v. State of New York, 265 A.D.2d 647, 648, 696 N.Y.S.2d 545 [1999] ). Inasmuch as the award was made following a bench trial, "this Court's power is as broad as that of the trial court, and we may render judgment as warranted by the facts, though we take into account the trial court's advantage of having observed the witnesses" ( Augusta v. Kwortnik, 161 A.D.3d 1401, 1405, 78 N.Y.S.3d 726 [2018] ; see Baba–Ali v. State of New York, 19 N.Y.3d 627, 640, 951 N.Y.S.2d 94, 975 N.E.2d 475 [2012] ; Walsh v. State of New York, 232 A.D.2d 939, 940, 648 N.Y.S.2d 816 [1996] ).
According deference to the credibility determinations of the Court of Claims (see Smith v. State of New York, 121 A.D.3d 1358, 1359, 995 N.Y.S.2d 329 [2014] ), the record establishes that Fabiano's fall caused him to suffer injuries that included a fractured vertebra. The injuries caused him excruciating pain at the outset and have required physical therapy, medication, epidural injections and multiple surgical procedures to treat. Despite those efforts, Fabiano still suffered from chronic back pain that his orthopedic surgeon opined would be permanent. Fabiano was 53 years old at the time of trial, was unable to return to his chosen trade due to his back injury and described how his pain limited his ability to drive long distances, work around the house and engage in family and recreational activities that he once enjoyed. Moreover, his orthopedic surgeon opined that causally-related back surgery was likely to lie in Fabiano's future. Assessing a person's pain and suffering is a subjective task and, upon consideration of "comparable cases and the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury," we cannot say that the award for Fabiano's past and future pain and suffering deviated materially from reasonable compensation ( Richards v. Fairfield, 127 A.D.3d 1290, 1291, 6 N.Y.S.3d 743 [2015] [internal quotation marks and citations omitted]; see Acton v. Nalley, 38 A.D.3d 973, 975–977, 831 N.Y.S.2d 277 [2007] ; Strangio v. New York Power Auth., 275 A.D.2d 945, 946, 713 N.Y.S.2d 613 [2000] ; Rountree v. Manhattan & Bronx Surface Tr. Operating Auth., 261 A.D.2d 324, 328, 692 N.Y.S.2d 13 [1999], lv denied 94 N.Y.2d 754, 701 N.Y.S.2d 340, 723 N.E.2d 89 [1999] ; Gonzalez v. Rosenberg, 247 A.D.2d 337, 337, 669 N.Y.S.2d 216 [1998] ; cf. Williams v. City of New York, 105 A.D.3d 667, 667–669, 964 N.Y.S.2d 134 [2013] ). We reach the same conclusion as to the award to Fabiano's wife for past and future loss of services, which the Court of Claims aptly noted were established with minimal detail (see Orlikowski v. Cornerstone Community Fed. Credit Union, 55 A.D.3d 1245, 1248, 865 N.Y.S.2d 429 [2008], lv dismissed 11 N.Y.3d 915, 873 N.Y.S.2d 530, 901 N.E.2d 1284 [2009] ; Grant v. City of New York, 4 A.D.3d 158, 159, 772 N.Y.S.2d 39 [2004] ).
Defendant, in its cross appeal, focuses upon the quashing of its posttrial nonparty subpoenas seeking information regarding the workers' compensation rates for medical care provided to Fabiano in the future. In an action to recover for personal injuries, an award for past or future medical expenses will be reduced if the 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] ). If future medical expenses are covered by the workers' compensation carrier, the payments will be "specifically excluded from consideration" as collateral source payments inasmuch as a statutory right of reimbursement comes with them ( Zimnoch v. Bridge View Palace, LLC, 69 A.D.3d 928, 930, 893 N.Y.S.2d 253 [2010] ; see CPLR 4545[a] ; Workers' Compensation Law § 29[1] ). If they are not covered, but Fabiano is nevertheless entitled to a reduced workers' compensation rate for medical care, there will be no "collateral source payment[ ] that actually replace[s] a particular category of awarded economic loss" and brings CPLR 4545 into play ( Oden v. Chemung County Indus. Dev. Agency, 87 N.Y.2d 81, 87, 637 N.Y.S.2d 670, 661 N.E.2d 142 [1995] ). Thus, even assuming that information regarding the workers' compensation rates for medical services might be pertinent in determining the award of damages for medical expenses, it is "utterly irrelevant to any proper inquiry" regarding collateral source reductions to that award, and the subpoenas seeking the information in that context were properly quashed ( Matter of Kapon v. Koch, 23 N.Y.3d 32, 38, 988 N.Y.S.2d 559, 11 N.E.3d 709 [2014] [internal quotation marks and citations omitted] ).
The general rule is that "discovery of collateral source issues is to be conducted prior to the filing of a note of issue" (Firmes v. Chase Manhattan Auto. Fin. Corp., 50 A.D.3d 18, 37, 852 N.Y.S.2d 148 [2008], lv denied 11 N.Y.3d 705, 866 N.Y.S.2d 608, 896 N.E.2d 94 [2008] ; see Stolowski v. 234 E. 178th St. LLC, 89 A.D.3d 549, 549, 933 N.Y.S.2d 232 [2011] ). It is unclear what "unusual or unanticipated circumstances" warranted defendant to seek posttrial discovery here (22 NYCRR 206.12 [c]; see French v. Schiavo, 63 A.D.3d 403, 404, 880 N.Y.S.2d 628 [2009], lv denied 14 N.Y.3d 702, 898 N.Y.S.2d 97, 925 N.E.2d 102 [2010] ).
Egan Jr., J.P., Lynch, Rumsey and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed, without costs.