Opinion
418 CA 21-00692
04-29-2022
Arlisa MAYS, Plaintiff-Respondent, v. Tyler Lee GREEN, Power & Construction Group, Inc., and Livingston Associates, LLC, Defendants-Appellants.
LAW OFFICE OF JOHN WALLACE, ROCHESTER (VALERIE L. BARBIC OF COUNSEL), FOR DEFENDANTS-APPELLANTS. THE RUSSELL FRIEDMAN LAW GROUP, LLP, ROCHESTER (RON F. WRIGHT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
LAW OFFICE OF JOHN WALLACE, ROCHESTER (VALERIE L. BARBIC OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
THE RUSSELL FRIEDMAN LAW GROUP, LLP, ROCHESTER (RON F. WRIGHT OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, NEMOYER, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and reducing the award of damages by $230,029.12, and as modified the order is affirmed without costs.
Memorandum: In this personal injury action arising out of a motor vehicle accident, defendants appeal from an order denying their motion under CPLR 4545 (a) to reduce the award of damages for plaintiff's lost wages by the amount that she purportedly recovered from collateral sources. We agree with defendants that plaintiff's Retirement and Social Security Law article 15 disability retirement benefits "replace the income [she] would have earned if she did not have to retire early due to her ... disability-causing injury" ( Andino v. Mills , 31 N.Y.3d 553, 562, 81 N.Y.S.3d 331, 106 N.E.3d 714 [2018] ; see Terranova v. New York City Tr. Auth. , 49 A.D.3d 10, 18-20, 850 N.Y.S.2d 123 [2d Dept. 2007], lv denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084 [2008] ). Supreme Court thus erred in denying defendants’ motion insofar as it sought to reduce the award for lost wages by the $224,151 in disability retirement benefits that plaintiff will receive during the period for which such damages were awarded (see Andino , 31 N.Y.3d at 557-563, 81 N.Y.S.3d 331, 106 N.E.3d 714 ; Terranova , 49 A.D.3d at 18-20, 850 N.Y.S.2d 123 ; see generally CPLR 4545 [a] ). We therefore modify the order accordingly. Moreover, plaintiff concedes that defendants are entitled to an additional offset of $5,878.12 against the award of lost wages, and we therefore further modify the order accordingly (see generally Rose Park Place, Inc. v. State of New York , 120 A.D.3d 8, 13, 985 N.Y.S.2d 350 [4th Dept. 2014] ). Defendants, however, failed to meet their initial burden of establishing their entitlement to any further collateral-source reduction in the award (see McKnight v. New York City Tr. Auth. , 150 A.D.3d 840, 842-843, 55 N.Y.S.3d 91 [2d Dept. 2017] ; Boshnakov v. Board of Educ. of Town of Eden , 277 A.D.2d 996, 997, 716 N.Y.S.2d 520 [4th Dept. 2000], lv denied 96 N.Y.2d 703, 723 N.Y.S.2d 130, 746 N.E.2d 185 [2001] ).