Opinion
# 2016-018-719 Claim No. 109520 Motion No. M-88418
05-10-2016
BRANDON WILLIAM GARDNER, INDIVIDUALLY AND AS ADMINISTRATOR WITH WILL ANNEXED OF THE ESTATE OF WILLIAM G. GARDNER, CYNTHIA ANN GARDNER, AND RYAN J. GARDNER v. STATE OF NEW YORK
ANTHONY F. ENDIEVERI, ESQUIRE ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Patricia M. Bordonaro, Esquire Assistant Attorney General Frederick A. Brodie, Esquire Assistant Solicitor General
Synopsis
Defendant's motion for Order Directing CPLR 50-B judgment granted; stipulated, modified damage award was not reduced by collateral source payments and reductions must be made in Order Directing Judgment.
Case information
| UID: | 2016-018-719 |
| Claimant(s): | BRANDON WILLIAM GARDNER, INDIVIDUALLY AND AS ADMINISTRATOR WITH WILL ANNEXED OF THE ESTATE OF WILLIAM G. GARDNER, CYNTHIA ANN GARDNER, AND RYAN J. GARDNER |
| Claimant short name: | GARDNER |
| Footnote (claimant name) : | Effectively, all individual claims were dismissed by the Decision dated November 19, 2012. The only remaining Claimant is Brandon William Gardner as Administrator with Will Annexed of the Estate of William G. Gardner. |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 109520 |
| Motion number(s): | M-88418 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | ANTHONY F. ENDIEVERI, ESQUIRE |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Patricia M. Bordonaro, Esquire Assistant Attorney General Frederick A. Brodie, Esquire Assistant Solicitor General |
| Third-party defendant's attorney: | |
| Signature date: | May 10, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings, by Order to Show Cause, a motion seeking an Order directing judgment pursuant to CPLR 50-B, deducting the collateral source payments as determined in a Decision of this Court dated November 26, 2013, from the modified gross loss of support awards for Brandon W. Gardner and Ryan J. Gardner, as conditionally determined by the Appellate Division, Fourth Department, in a Decision entered on December 31, 2015, and stipulated to by Claimant on January 6, 2016. Claimant contested the motion and oral argument was held on April 26, 2016.
In an Amended Decision dated November 19, 2012, after a damages trial, this Court made gross awards for past loss of support to Decedent's sons, $275,100 to Brandon W. Gardner, and $473,400 to Ryan J. Gardner. A collateral source hearing was held and a Decision rendered pursuant to CPLR 4545, finding Defendant was entitled to a deduction from the past loss of support award for each son for the collateral source payments they received. The Court found Brandon W. Gardner had received collateral source payments of $50,191.97, and Ryan J. Gardner had received $222,368.97, and those collateral source amounts duplicated the Court award of past loss of support. After deducting the collateral source payments, the net award for past loss of support for Brandon W. Gardner was $224,908.03, and $251,031.03 for Ryan J. Gardner. These amounts, along with other damage awards, were reduced to a judgment entered October 6, 2014.
Decision dated November 26, 2013 and filed December 17, 2013.
The State appealed the judgment and Claimant cross appealed. Neither party raised the collateral source Decision as an issue on appeal. On December 31, 2015, the Appellate Division, Fourth Department, rendered a Decision modifying the judgment by conditionally reducing the gross awards for past loss of support, finding those awards were not supported by the evidence, and that the maximum amounts that were supported by the evidence was $175,000 for Brandon W. Gardner and $250,000 for Ryan J. Gardner. The judgment was so modified and a new trial ordered on the sole issue of past loss of financial support unless Claimant stipulated to the reduced amounts within 20 days. Claimant's counsel signed a Stipulation agreeing to the modified reduced gross award on January 6, 2016, and the Court "So Ordered" the modification the same day.
After trying to reach an agreement on the provision for the 50-B Order Directing Judgment, numerous letters were exchanged and a telephone conference was conducted, but the parties could not agree on the issue. The sole issue is whether the Appellate Division Decision conditionally modifying the past loss of support awards included the deduction for the collateral source payments.
After reviewing all the submitted affidavits, the Decisions and Orders, and hearing oral arguments, the Court grants Defendant's motion and finds that the collateral source payments were not deducted from the modified past loss of support awards as determined by the Appellate Division and stipulated to by Claimant.
CPLR 4545 (a) states in part, "[a]ny collateral source deduction required by this subdivision shall be made by the trial court after the rendering of the jury's verdict." The statute provides that collateral source payment deductions are to be made after the gross damage awards rendered by a jury or, in this case, the Court. The parties both agreed that the collateral source payments reduce the gross awards. Both parties also agreed that the Appellate Division used this Court's gross awards when modifying the past loss of support awards and did not address the collateral source payments. Therefore, the only conclusion to be drawn is that the modified past loss of support awards as found by the Appellate Division and stipulated to by Claimant are gross awards, unreduced by the collateral source payments.
Accordingly, Defendant's motion is GRANTED to the extent that the collateral source payments, as determined by this Court in its November 26, 2013 Decision, must be deducted prior to the entry of the modified judgment.
The Court will conference with the parties to finalize the Order Directing 50-B Judgment for signature and filing.
May 10, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Order to Show Cause. 2) Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney General, in support with exhibits attached thereto. 3) Affidavit of Anthony F. Endieveri, Esquire, in opposition, with exhibit attached thereto. 4) Reply Affirmation of Patricia M. Bordonaro, Esquire, Assistant Attorney General, in support.