Moshe v Country-Wide Ins. Co.. 2018 NY Slip Op 28220 (Dis. Ct. Nassau Co. 2018)
(1) “Plaintiffs bring this plenary action to recover the sum of $10,906.14, said sum being the balance of monies claimed due as loss of earning for Moshe’s appearance at a November 10, 2015 examination under oath (EUO or deposition) taken in the context of first-party no-fault insurance claim(s) submitted by Excel Surgery Center, LLC (Excel) of which Moshe is owner.”
(2) “In support thereof, and as previously requested by Country-Wide’s counsel (Complaint at ¶ 22), Excel’s counsel provided a redacted copy of Moshe’s 2014 joint federal tax return which showed $320,000.00 in “Wages, salaries tips, etc.” and an additional $2,604,942.00 in “Rental real estate, royalties, partnerships, S corporations, trusts, etc.” (Complaint at ¶ 24; defendant’s Exhibit D [tax return]”
(3) “The within action was subsequently brought by plaintiffs seeking recovery of the difference between Moshe’s demand ($12,186.14) and Country-Wide’s payment ($1,280.00). The issue now before the court is whether plaintiff Moshe should be compelled to appear for a “second” deposition, this time addressing how he calculates the $10,906.14, as the unpaid balance still due him for his loss of earnings incurred by his appearance at first deposition.
() Plaintiffs oppose defendant’s current notice to again depose plaintiff Moshe contending that the first deposition should have included the “loss of earnings” issue. In effect, plaintiffs would have this court find that defendant’s failure to address the loss of earnings issue in the context of the first-party no-fault claim constitutes a waiver of defendant’s right to now depose him in the context of this action.
(5) “Nevertheless, the within plenary action remains an adjunct of the prior claim for first-party no-fault benefits. There is no dispute that Moshe is entitled to be paid for the financial impact of appearing at the first deposition. To now permit a second deposition to be held over a dispute regarding the amount of that impact has the practical effect of reducing by roughly half the recovery intended to be protected by 22 NYCRR § 65-3.5[e]. This is so regardless of which party ultimately prevails in fixing the amount of Moshe’s loss of earnings for his appearance at the first deposition.”
(6) “Under the circumstances, the consequences of a second deposition seem inherently unreasonable given the availability of a middle course designed to protect defendant’s right to discovery in the context of this plenary action while recognizing that the action has as its core a claim of financial harm caused by deposing plaintiff.”
Look, this decision is wrong. When you bring a plenary action, you are subjected to a deposition. Even the First Department gave the “cf” treatment to Ralph Medical v. Mercury in Acupuncture Approach.. What is more concerning this: Why would you bring a plenary case that would expose Mr. Moshe’s tax returns? My eyes are rolling at this one.
Martinez v Metropolitan Transp. Auth., 2018 NY Slip Op 02028 (1st Dept. 2008)
“Plaintiff failed to establish her past lost earnings with reasonable certainty since her testimony was unsubstantiated by tax returns, W-2 forms, or other documentation (Orellano v 29 E. 37th St. Realty Corp., 4 AD3d 247 [1st Dept 2004], lv denied 4 NY3d 702 ; cf. Kane v Coundorous, 11 AD3d 304, 305 [1st Dept 2004] [plaintiff’s testimony about lost earnings sufficient where defendants “expressly declined to challenge such testimony by the use of the W-2 forms in their possession”]).”
My sources certain insurance companies refuse to pay plaintiff healthcare practitioners who come in for EUOs. Question always becomes how do you prove lost wages? Healthcare professionals are loathe to give up their tax records and bank statements. Those “marketing charges”, “maintenance charges”, “computer upkeep charges” – well are a Pandoras box that makes payroll for SIU defense firms
What “other documentation” can prove lost wages?
Freligh v Government Employees Ins. Co., 2017 NY Slip Op 08714 (2017)
“Triable issues of fact exist as to plaintiff’s claim for lost wages. ”
This was the case where the Appellate Division, Third Department went to great pains to show that the Plaintiff’s lost wage claims were the textbook definition of speculative. The dissent argued that these were pure credibility issues being decided on summary judgment motion. The Court of Appeals reversed.
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.