4248B v. Genie Industries, Inc., et al., Defendants-Respondents. (2011)

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Judgment, Supreme Court, New York County (O. Peter Sherwood, J.), entered April 21, 2010, following a jury trial, insofar as appealed from as limited by the briefs, issuing a collateral source offset reducing the jury's award of $1,427,386 for lost future earnings by $608,559.08 for future Social Security disability benefits and reducing plaintiff's lost earnings award by $24,000 for Social Security benefits received by plaintiff's daughter pursuant to orders, same court (Marilyn Shafer, J.), entered January 22, 2009 and April 23, 2009, which, upon defendants' motion pursuant to CPLR 2221 to stay execution of plaintiff's proposed judgment, inter alia, directed plaintiff to serve an amended proposed judgment providing for appropriate offsets from the date of the accident and into the future, unanimously reversed, on the law, without costs, the collateral source offset vacated, the jury's award for future lost earnings reinstated, the amount deducted for Social Security benefits received by plaintiff's daughter reinstated, and the matter remanded for a recalculation of the judgment.   Appeal from the aforesaid orders unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendants failed to establish, “with reasonable certainty,” that plaintiff would continue to receive Social Security disability benefits (see CPLR 4545;  Oden v Chemung County Indus.   Dev. Agency, 87 N.Y.2d 81 [1995] ).   Indeed, the jury's award of future lost earnings reflected a clear rejection of plaintiff's claim at trial that as a result of his injuries, he would be unable to return to work.   Furthermore, plaintiff's daughter's Social Security benefits were improperly deducted from the lost

earnings award (see Young v. Knickerbocker Arena, 281 A.D.2d 761, 764-765 [2001] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK