Opinion
April 26, 1991
Appeal from the Supreme Court, Wyoming County, Newman, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order unanimously affirmed with costs. Memorandum: Defendants contend that plaintiff is barred by collateral estoppel from litigating his claim for lost wages. We disagree. Because plaintiff arbitrated only his no-fault claim for medical expenses, and not his claim for lost wages, there is no identity of issue to form a basis for issue preclusion (see, Kaufman v. Lilly Co., 65 N.Y.2d 449, 455; Kingston v. State Farm Mut. Auto. Ins. Co., 165 A.D.2d 970). Indeed, the issue of lost wages could not have been considered in the health service arbitration because, under the multitiered no-fault arbitration system, that arbitration forum is limited to medical payment claim disputes (see, 11 NYCRR 65.16 [c] [3] [ii]; see also, Matter of Berent [County of Erie], 86 A.D.2d 764). Additionally, plaintiff's failure to reach the $50,000 threshold for basic economic loss does not bar him from suing defendants for lost wages to the extent that they exceed basic economic loss (see generally, Fiveson v. Kondenar, 110 A.D.2d 749; McDonnell v. Best Bus Co., 97 A.D.2d 433).