Hughes v. Ryder Truck Rental, Inc.

125 A.D.2d 177, 508 N.Y.S.2d 442, 1986 N.Y. App. Div. LEXIS 62447

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 2, 1986
• Status: Published

Opinion

— Order, Supreme Court, New York County (Elliott Wilk, J.), entered August 30, 1985, denying defendants’ posttrial motion to reduce the $800,000 verdict in plaintiff Calisi’s favor by $36,000, unanimously reversed, on the law, without costs or disbursements, and the motion granted.

Plaintiff Calisi, a New York City police officer and pedestrian at the time, was injured through the negligent operation of a covered motor vehicle, as a result of which he never again returned to work. For the first 14 months following the accident he received his full salary. He thereafter retired as a result of the injuries sustained in the accident on a three-quarters disability pension, which he will receive for the remainder of his life. At the trial of his action against the tort-feasors, defendants herein, he sought and was awarded lost earnings from the date of the accident to the date of the trial. His expert testified that a police officer’s base salary was never less than $24,215 in the 3!á-year interval between the accident and the trial, and in the last year reached $30,126. Thus, said plaintiff’s gross lost earnings at the time of trial were projected to be $125,000. The jury awarded him $140,000 for lost earnings and pain and suffering from the date of accident. He was also awarded $580,000 in future lost earnings.

After the trial, defendants moved to reduce the verdict by $36,000, the amount of basic economic loss for lost earnings, i.e., up to $1,000 per month for the first 36 months (Insurance Law § 5102 [a] [2]), which, they argued, may not be recovered in a plenary action to recover for a serious injury. Special Term denied the motion. We reverse.

Since basic economic loss may not be recovered in a plenary action by a covered person against another covered person (Insurance Law § 5104 [a]), plaintiff Calisi’s award of full lost earnings from the date of accident must be reduced by $36,000, the basic economic loss component of that award. That said plaintiff did not receive first-party benefits is, contrary to his argument, irrelevant, since the prohibition against the recovery of basic economic loss from a tort-feasor is absolute. (See, Matter of Granger v Urda, 44 NY2d 91; McDonnell v Best Bus Co., 97 AD2d 433; Fiveson v Kondenar, 110 AD2d 749.) In any event, the terms "basic economic loss” and "first-party benefits”, as used in the No-Fault Law, are not synonymous. (Fiveson v Kondenar, supra, at p 750.) Since a police officer’s pretrial monthly salary significantly exceeded $1,000, which figure was used as a measure of plaintiff Calisi’s pretrial lost earnings, and he was disabled for at least three years after the accident, the lost earnings portion of his basic economic loss was $36,000. This amount, which we do not have any difficulty in extricating from the $140,000 pretrial damage award, mostly representing lost earnings, must be deducted from the verdict without consideration of any other benefits he received. Concur — Murphy, P. J., Sullivan, Asch, Fein and Wallach, JJ.