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.