GUERRA v. CITY OF NEW YORK (2000)

This action arose as a result of personal injuries sustained in a vehicular accident by New York Police Department Detective Maximo Guerra (hereinafter, “Guerra”), while responding to an assignment on June 4, 1993.   Guerra was a front seat passenger and Detective Rochester was the operator of a police vehicle that collided with a vehicle operated by co-defendant, Jose A. Candanedo (hereinafter, “Candanedo”), and owned by co-defendant, Racal Construction Corp. (hereinafter, “Racal”).   Guerra commenced an action against defendants based upon negligence and General Municipal Law § 205-e and Guerra's wife, co-plaintiff, Yrma X. Guerra, commenced an action for loss of services against defendants.   General Municipal Law § 205-e provides, inter alia, that in addition to any other right of action or recovery a police officer may have, the police officer has a cause of action against anyone who is negligent and fails to comply with a requirement of a statute, ordinance or rule.

In December of 1999, Guerra settled his claims against Racal and Candanedo for $225,000.   The settlement between Guerra and co-defendants, Racal and Candanedo (hereinafter, “settlement”), provided that 90% of the settlement amount was for compensation in the first cause of action based upon common law negligence, and 10% was for compensation in the second cause of action based upon GML § 205-e.   Yrma Guerra settled her derivative claim for $25,000.

At trial the remaining co-defendant, The City of New York (hereinafter, “the City”), defended against Guerra's claims.   On July 7, 2000, the jury awarded Guerra $100,000 for past pain and suffering and $200,000 for past lost wages.   Noteworthy was the jury's apportionment of comparative liability of zero percent for the settling co-defendant, Candanedo.   The City moves for an Order reducing the verdict on account of the prior settlement pursuant to General Obligations Law § 15-108 and moves for a collateral source reduction of the past lost earnings pursuant to CPLR § 4545(b).

 With respect to the CPLR 4545(b) collateral source reduction, it is undisputed that the entire $200,000 awarded for past lost earnings must be reduced to no award on account of the City's past payment of pension benefits of $277,677.

With respect to GOL § 15-108, subdivision (a) provides:

When a release or a covenant not to sue or not to enforce a judgment is given to one of two or more persons liable or claimed to be liable in tort for the same injury, or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms expressly so provide, but it reduces the claim of the releasor against the other tortfeasors to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, or in the amount of the released tortfeasor's equitable share of the damages under article fourteen of the civil practice law and rules, whichever is the greatest.

 The City contends that the past pain and suffering award of $100,000 must be reduced by the entire $225,000 received in the settlement, resulting in no award to Guerra.   In opposition, Guerra contends that the jury award of $100,000 should be reduced by 10% of the $225,000 settlement, that is, a $22,500 reduction, leaving an award to Guerra of $77,500.   Guerra reasons that since he withdrew his common law cause of action prior to opening statements at trial and proceeded only on his GML § 205-e cause of action, the jury award of $100,000 was exclusively for his GML § 205-e cause of action.   Thus, Guerra argues, the $202,500 apportioned in the settlement to Guerra's common law cause of action cannot offset the jury award based on a GML § 205-e claim.

 However, it is the apportionment of settlement proceeds related to different categories of loss which is relevant to a GOL § 15-108 reduction, not apportionment among different theories of liability.   In the case cited by Guerra, Arbutina v. Bahuleyan, 159 A.D.2d 973, 552 N.Y.S.2d 766 (4th Dept. 1990), the settlement amount was apportioned to causes of action related to different categories of loss, wrongful death and conscious pain and suffering.   The apportionment of the pre-verdict settlement proceeds between two causes of action related to liability has no relevance to a GOL § 15-108 reduction.   Otherwise, plaintiffs could receive windfalls from pre-verdict settlements that are apportioned to causes of action related to theories of liability that are not brought against the nonsettling defendants at trial, thereby allowing plaintiffs to recover monetary damages in excess of the plaintiffs' actual loss as determined by a jury verdict.  “Plaintiffs are entitled to be made whole, as determined by the trier of fact, but have no right to overcompensation.”  Rohring v. City of Niagara Falls, 84 N.Y.2d 60, 67, 614 N.Y.S.2d 714, 638 N.E.2d 62 (1994).

Accordingly, the City's motion for an Order statutorily reducing the jury award pursuant to General Obligations Law § 15-108 and for a collateral source reduction of the past lost earnings pursuant to CPLR § 4545(b) is granted.   For the aforesaid reasons, the jury award of July 7, 2000, for $100,000 for past pain and suffering and $200,000 for past lost wages in favor of Guerra is hereby reduced to no award for past pain and suffering and no award for past lost wages.

YVONNE GONZALEZ, J.