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Lost wages not proven within a reasonable degree of certainty.July 31, 2017

Freligh v Government Empls. Ins. Co., 2017 NY Slip Op 05911 (3d Dept. 2017)

Admittedly, I like the issue of lost wages.  I am convinced few practitioners understand all the nuances involved – I will not say more.  It is clearly an undeveloped area of no-fault law and seemingly all over the place.  Perhaps that is why I  bring these actions or arbitration – they are intellectually entertaining at times.

A firm upstate I tried a case involving medical bills (one week jury trial in Kingston) leads the charge on these cases.  Their results are quite good.   This one ended in a 3-2 decision ending in dismissal.  I hope Derek takes it up to the Court of Appeals, because it looks like a fascinating case.

The cliff-notes version of this case is that the EIP was unemployed when the accident occurred.  Prior to the accident, he was offered a job to run a parts plant.  He was unable to do so because of his accident.  The EIP projected a certain income on his claim forms.

The defense and the basis for summary judgment was that the job opportunity was a farse.  Various pieces of evidence, including documentary, deposition and FOIL responses proved (in the eyes of the Court) that the sought after job opportunity was unreasonable as a matter of law and Plaintiff’s claim of income at this job lacked legal merit.  The Court reversed Supreme Court and dismissed the complaint.

The dissent stated viewing the evidence in the light most favorable to the non-moving party, a rational fact finder could find the job opportunity legitimate and would have affirmed.

If this goes to the Court of Appeal, it is hard to figure out where they will go with this one.

2 Responses

  1. Sham-Wow says:

    What’s interesting here is that the Court bounced it was not reasonable; it’s much more common to see these cases denied due to the requisite degree of certainty being sorely lacking. The Court flipped the script by rejecting the alleged facts of the case.

    • jtlawadmin says:

      Yes! the court said: “this makes no sense”. 2 Justices did not agree with what appears to be a possible subversion of the maxim that issues of credibility are not to be determined on motion. Yet, the three justices made valid arguments that it just made no sense.

      What will the COA say? I think they reverse.

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