Key Takeaway
Nassau County court case about no-fault insurance EUO lost wages claim, where plaintiff sought $10,906 for earnings lost attending deposition but revealed $2.6M income.
This article is part of our ongoing lost wages coverage, with 10 published articles analyzing lost wages issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
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 ”
(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. 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.
Related Articles
- Understanding loss of earnings calculations and requirements
- When lost wage cases can be reinstated on appeal
- Proving lost wages within a reasonable degree of certainty
- Avoiding common pitfalls in New York lost wages claims
Legal Update (February 2026): Since this 2018 post, New York’s no-fault regulations regarding examination procedures and lost earnings calculations may have been modified through regulatory amendments or updated fee schedules. Practitioners should verify current provisions under 11 NYCRR § 65-3.5 and related examination protocols, as procedural requirements and compensation standards for depositions and examinations under oath may have evolved.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
Keep Reading
More Lost wages Analysis
Can You Sue Your Employer for an Unpaid Bonus?
Learn when you can sue your employer for unpaid bonuses in New York. Understand discretionary vs non-discretionary bonuses and your legal rights under state law.
Apr 1, 2025NY Wage and Hour Laws
New York wage and hour law updates: 2025 minimum wage changes, compliance strategies, and avoiding costly violations.
Feb 28, 2025Lost wages not proven within a reasonable degree of certainty.
Court dismisses no-fault lost wages claim where unemployed plaintiff's projected income from potential job opportunity lacked reasonable degree of certainty.
Jul 31, 2017New York’s “Spread of Hours” Rule
Learn how New York's spread of hours law affects worker pay. Expert insights on calculating extended workday compensation and compliance.
Feb 20, 2025Stop Wage Theft: Reclaim Your Earned Pay
Learn how to identify and fight wage theft, understand your legal rights, and take action to recover unpaid wages in New York.
Jan 2, 2025Lost Wages Claims in New York: Avoiding Job Abandonment Pitfalls
Learn how to protect your lost wages claim in New York personal injury cases. Avoid job abandonment pitfalls with expert legal guidance. Call 516-750-0595 for help.
Jun 2, 2019Common Questions
Frequently Asked Questions
What lost wage benefits are available under New York no-fault insurance?
No-fault PIP covers 80% of your lost earnings, up to $2,000 per month, for up to 3 years from the accident. You must provide documentation from your employer confirming your absence and wages. Self-employed individuals must provide tax returns and financial records.
Can I recover lost wages beyond no-fault limits?
Yes, through a personal injury lawsuit against the at-fault driver. If you meet the serious injury threshold under §5102(d), you can seek full lost wages — past and future — without the $2,000/month cap. This includes bonuses, overtime, commissions, and future earning capacity.
What documentation do I need to prove lost wages?
For no-fault claims, you need your employer's verification (NF-6 form), proof of missed work, and medical documentation. For a personal injury lawsuit, additional evidence may include tax returns, pay stubs, expert vocational assessments, and testimony about career trajectory.
Was this article helpful?
About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a lost wages matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.