Malloy v. Stellar Management

Appellate Division of the Supreme Court of New York

Malloy v. Stellar Management

68 A.D.3d 668, 892 N.Y.2d 86

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 29, 2009

StatusPublished

Cited by1 cases

This text of 68 A.D.3d 668 (Malloy v. Stellar Management) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Malloy v. Stellar Management, 68 A.D.3d 668, 892 N.Y.2d 86 (N.Y. Ct. App. 2009).

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Opinion

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 AD3d 257 [2005], lv denied 6 NY3d 712 [2006]; Young v Knickerbocker Arena, 281 AD2d 761 [2001]).

The discount rate adopted by trial court in structuring the judgment was adequately supported by plaintiffs expert’s affidavit and was otherwise a proper exercise of discretion (see Calaway v Metro Roofing & Sheet Metal Works, 284 AD2d 285, 286 [2001]; Reed v Harter Chair Corp., 196 AD2d 123, 127 [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-plus rating (CPLR 5042). Concur — Mazzarelli, J.P., Catterson, Moskowitz, Richter and Manzanet-Daniels, JJ.

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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 AD3d 257 [2005], lv denied 6 NY3d 712 [2006]; Young v Knickerbocker Arena, 281 AD2d 761 [2001]).

The discount rate adopted by trial court in structuring the judgment was adequately supported by plaintiffs expert’s affidavit and was otherwise a proper exercise of discretion (see Calaway v Metro Roofing & Sheet Metal Works, 284 AD2d 285, 286 [2001]; Reed v Harter Chair Corp., 196 AD2d 123, 127 [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-plus rating (CPLR 5042). Concur — Mazzarelli, J.P., Catterson, Moskowitz, Richter and Manzanet-Daniels, JJ.

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68 A.D.3d 668, 892 N.Y.2d 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malloy-v-stellar-management-nyappdiv-2009.

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