MALLOY v. [And a Third-Party Action].

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Gerard MALLOY, et al., Plaintiffs-Respondents, v. STELLAR MANAGEMENT, et al., Defendants-Appellants. [And a Third-Party Action].

Decided: December 29, 2009

MAZZARELLI, J.P., CATTERSON, MOSKOWITZ, RICHTER, MANZANET-DANIELS, JJ. Shaub, Ahmuty, Citrin & Spratt LLP, Lake Success (Christopher Simone of counsel), for appellants. Alexander J. Wulwick, New York, for respondents.

Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 16, 2008, following a jury trial, insofar as appealed from, as limited by the briefs, awarding plaintiffs $3,398,346.98 in damages and structuring the award in compliance with CPLR article 50-B, unanimously modified, on the law and the facts, to allow a collateral source reduction of $107,038 against damages awarded for past lost earnings, and otherwise affirmed, without costs.

Plaintiff Gerard Malloy suffered spinal injury requiring fusion surgery and resulting in complications which include constant and severe pain. As conceded by plaintiff on appeal, the award for past lost earnings was subject to a collateral source reduction of $107,038 due to Social Security Disability (SSD) benefits paid to plaintiff prior to the entry of judgment (see CPLR 4545 [c] ). A collateral source offset for future SSD benefits was not warranted. Defendants did not meet their burden of showing that it is ‘highly probable’ that plaintiff will continue to be eligible for benefits (see id.), as the record evidence demonstrates that his condition had improved and, although still primarily disabled, he was capable of performing some limited sedentary work (see Ruby v. Budget Rent A Car Corp., 23 A.D.3d 257, 806 N.Y.S.2d 12 [2005], lv. denied 6 N.Y.3d 712, 816 N.Y.S.2d 747, 849 N.E.2d 970 [2006]; Young v. Knickerbocker Arena, 281 A.D.2d 761, 722 N.Y.S.2d 596 [2001] ).

The discount rate adopted by trial court in structuring the judgment was adequately supported by plaintiff's expert's affidavit and was otherwise a proper exercise of discretion (see Calaway v. Metro Roofing & Sheet Metal Works, 284 A.D.2d 285, 286, 727 N.Y.S.2d 426 [2001]; Reed v. Harter Chair Corp., 196 A.D.2d 123, 127, 608 N.Y.S.2d 586 [1994] ). The trial court did not abuse its discretion by requiring the purchase of an annuity contract to secure periodic payment of future damages from an insurance carrier with an A+ rating (CPLR 5042).