McClendon v New York City Tr. Auth. 2025 NY Slip Op 31020(U) March 31, 2025 Supreme Court, Kings County Docket Number: Index No. 4489/2012 Judge: Anne J. Swern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 03/31/2025 03:58 PM INDEX NO. 4489/2012 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/31/2025
At anlAS Trial'ferm, Part 75 ofthe Supreme Court of the State of New York, Kings County, at the Courthouse located at 360 Adams Street, Brooklyn, New York on the 31 st day of March 2025. PRESENT: HON. ANNE J. SWERN, J.S.C.
FREDERICK MCCLENDON and ALEXIA MCCLENDON, DECISION & ORDER Index No.: 4489/2012 Plaintijf(s), Motion Seq.: 009 -against-
NEW YORK CITY TRANSIT AUTHORITY, and BYRON JOHNS JR.,
Defendant(s).
Recitation of thefollowingpapers as required by CPLR 2219(a); Papers Numbered Notice ofMotion, Affirmation, and Exhibits (NYSCEF43A7) ........... ;.......... 1, 2 Memorandum of Law and Exhibitin Opposition (NYSCEF 48'"49).................... 3
Trial Extract and VerdictSheet(NYSCEF 55) ............ ;....... ;............................... .4 Order dated 9/19/2024 (NYSCEF 56) .... ,........................... ,.............. , ............... ., .. 5
Upon the foregoing papers - and after a hearing, the decision and order ofthe Court is as. . . .
followsi
.After a trial on damages on 5/15/2024, a jury returned a verdict in plaintiff's favor.as
follows (NYSCEF 55, pp,10-13):
1) Past Pain and Suffering .......... ,............................ $15,000,000.00 2) Future Pain and Suffering (20 years}., ................ $20,000,000.00 · 3) PastLoss of Earnings ..... ,; ..... ;.. ;............................ $1,310,5 86,00 4) FlitureLoss of Earnings (15 years) ................. ;.; ..... ;$673;602.00 5) .Past Medical Expe11ses ..... ;., ................................ ;, ... $200;000.00 6) Future Medical Expenses(l Oyears).. ~ ..... ,; .......... $1 ;000,000.00 7) Past Loss of Services ........ 1... '. ........................... , .... $5;000,000.00 8) Fµture Loss of Services ,(20 years) ......... ;... ,.. ;..! •• $10,000 1000.00
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Oil 6/25/2024, defendant filed this motion seeking a hearing and decision: on the is"sue of
reducing the jury's Verdi.ct for past a:nd future loss ofearning~ and medical expenses pursuant to
CPLR §·4545. _Plaintiff filed a proposedjudg_mertt·on 7/17/2024 (NYSCEF 50). An.interim
orqe~>was issµed9/19/2024 direQtii1g a .collateralsource_hearing:.on ll/13/2024 but it was
adjourned to-.;2/L3/2025 (NYSCEF 56).
Defendanf:s .Exh1bits A through. C wereinarked for identification. Plaintiff's..objections
to Exhibits A and C were sustained. Exhib:it B, the "Summary Table of Collateral Source
Offsets/' ·was admitted into evidence. (Tr. 39 :22.:25, 40 :t-6). Defendants seek a collateral soutce
offset of$1,792,513.00j tµereby reduclng the jury's verdict for past and future loss of earnings
and medical expenses to. $191,675 {39:1~9);
Defendant's economist, Leonard Friefelder, was sworn iI1 as a witness and quaiified as an
expertwithout..-objectiop. by plaintiff (pp.6-9). H~testified_that he prepared the Exhibit B based
on hls review of the· jury's verdict. for past and future economic losses, 'and the trial testimony cif
the. plaintiff an.dplaintiff'.s expert-(pp, 19:.24).
EViDENC E
A) .Past and Future Health Insurance
Friefelder testified that the jury awarded past and future health insurance based on the
numbers testified to attriaiby plaintiff's expert (pp;Z0"-21). l>laintifrs expert iticJuded health
insµrance in the loss ofearnings calculation (id); Therefore, crediting_ the trial testimony of
plaintiff's ex;pert, co:upled with plaintiff's trial testimony that he has health insurance from the
date of the a,~cident cp_ntinµing_throughthe presentand that he will qualify for Medi(;are,
friefelder applied a dpllar.;for-dollar_.offset of $281~326.00 for-the past costofrepl acing he"1th
insurance and $28,250.Q0 f(,)rfuture .ht:lalth insurance (19:20-2-5-,_ 20: 1-16;- pp.22-24).
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However, Friefolder testified that he did not review plaintiff's ·health insurance policy and
therefore was unaware of the cost of the health plan prerniµrn or CO'"payrnents (42: 18-25; 43 :1-
10). He. offered no testfrnony as to the cost of any Medicare _prem1um, .further, the wj.mces_s_ was
aware t4at because plaintiff now resided in Florida~ some ofhis health care.costs may not_ b_e
ccwered_"byhis i11sut:mce (45:2.,.18}.
B): Past Loss or-Earnings
The plaintiff's past loss of earnings was $950,0S-6.00, phis $79,204, representing loss of
arinuity ·contributions (23: 1-7). Plaintiff testi:tied atJrial that he receives a NYCERS "Disability
Pension and Sociai ·Security Disability ·benefits (pp.25-27). Friefelder testified that according to
NYCERS. suinrnary plan description for Tier 4 pensions, at the age of65 with l Oyears of
service, plaintiff is entitled to a di~abiljty pension, equal to the greater than 1/3 of the final
aven~ge. thre~-year salary· or 1~667% multipljed. 30 years . . of service. Therefore,. since. plaintiff had
14 years. of service.=: with-a final av_erage salary of$63~739.00, Friefelder calculatedhis:annmd
disability _pension to be ,$21 ;246.00 wliich equ~ls ·an offset o( $268;326;00 from the date of
accident through the date of the verdict.(27~22-25, 28;1-22,.-32:16-22,.-_pp.47-48) ..:
Plaintiffwa:s also·receiving a social security disability benefit of $1,900~00 pet month or·
$22,800.00 annually (32:15-20). Therefore, Friefedler cakulate_d a further oft'set of$290,423.00
from the date of the accident through the verdict (J3:1 . . 14).
C) · Future Loss of Earn fogs
Based on the.foregoing data andfoonlll as, Friefelder determined tllat defendant is
entitled to ari offset of $378~697.00 for future NYCERS disabil;ty bi;mefits and $545;49 l .00 for
Soci;ll Security Disability Benefits (pp.33-35).
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·Friefelder .also factored into· his •calculations-Cost of Living Adjustments (COLA) for both
NYCERS.·and S-o.cial Security Disability (3"2:1-9,.pp.33-35)~ TheCOLAadjus_tment$ for both are
the same for all recipients regardless of where they reside. in the United States (pp;50~5 l ).
Friefelder;s testimony was-consistent with the Summary Tabie of Collateral Source
_Ofisets (Exhil:,jt B).
ANALYSIS
CPLRf 4545 authorizes a· court to offset or reduce·_awards for past.or.future e:!!:penses in
pe'rsonai"tnjury cases where ••any-such past or future costor expense wasor-wi.11, with.reasonable
certainty, bereplaced or indemnified, in whole odnpart;.from any c:ollateral source 1 except for
life insurance.... "· This section further provides that '~[I]fthe court finds that any such .cost or
expens~ was or will, with reasonabl~ certajnty, be replaced or indemnified fto:rh any .such
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McClendon v New York City Tr. Auth. 2025 NY Slip Op 31020(U) March 31, 2025 Supreme Court, Kings County Docket Number: Index No. 4489/2012 Judge: Anne J. Swern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 03/31/2025 03:58 PM INDEX NO. 4489/2012 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 03/31/2025
At anlAS Trial'ferm, Part 75 ofthe Supreme Court of the State of New York, Kings County, at the Courthouse located at 360 Adams Street, Brooklyn, New York on the 31 st day of March 2025. PRESENT: HON. ANNE J. SWERN, J.S.C.
FREDERICK MCCLENDON and ALEXIA MCCLENDON, DECISION & ORDER Index No.: 4489/2012 Plaintijf(s), Motion Seq.: 009 -against-
NEW YORK CITY TRANSIT AUTHORITY, and BYRON JOHNS JR.,
Defendant(s).
Recitation of thefollowingpapers as required by CPLR 2219(a); Papers Numbered Notice ofMotion, Affirmation, and Exhibits (NYSCEF43A7) ........... ;.......... 1, 2 Memorandum of Law and Exhibitin Opposition (NYSCEF 48'"49).................... 3
Trial Extract and VerdictSheet(NYSCEF 55) ............ ;....... ;............................... .4 Order dated 9/19/2024 (NYSCEF 56) .... ,........................... ,.............. , ............... ., .. 5
Upon the foregoing papers - and after a hearing, the decision and order ofthe Court is as. . . .
followsi
.After a trial on damages on 5/15/2024, a jury returned a verdict in plaintiff's favor.as
follows (NYSCEF 55, pp,10-13):
1) Past Pain and Suffering .......... ,............................ $15,000,000.00 2) Future Pain and Suffering (20 years}., ................ $20,000,000.00 · 3) PastLoss of Earnings ..... ,; ..... ;.. ;............................ $1,310,5 86,00 4) FlitureLoss of Earnings (15 years) ................. ;.; ..... ;$673;602.00 5) .Past Medical Expe11ses ..... ;., ................................ ;, ... $200;000.00 6) Future Medical Expenses(l Oyears).. ~ ..... ,; .......... $1 ;000,000.00 7) Past Loss of Services ........ 1... '. ........................... , .... $5;000,000.00 8) Fµture Loss of Services ,(20 years) ......... ;... ,.. ;..! •• $10,000 1000.00
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Oil 6/25/2024, defendant filed this motion seeking a hearing and decision: on the is"sue of
reducing the jury's Verdi.ct for past a:nd future loss ofearning~ and medical expenses pursuant to
CPLR §·4545. _Plaintiff filed a proposedjudg_mertt·on 7/17/2024 (NYSCEF 50). An.interim
orqe~>was issµed9/19/2024 direQtii1g a .collateralsource_hearing:.on ll/13/2024 but it was
adjourned to-.;2/L3/2025 (NYSCEF 56).
Defendanf:s .Exh1bits A through. C wereinarked for identification. Plaintiff's..objections
to Exhibits A and C were sustained. Exhib:it B, the "Summary Table of Collateral Source
Offsets/' ·was admitted into evidence. (Tr. 39 :22.:25, 40 :t-6). Defendants seek a collateral soutce
offset of$1,792,513.00j tµereby reduclng the jury's verdict for past and future loss of earnings
and medical expenses to. $191,675 {39:1~9);
Defendant's economist, Leonard Friefelder, was sworn iI1 as a witness and quaiified as an
expertwithout..-objectiop. by plaintiff (pp.6-9). H~testified_that he prepared the Exhibit B based
on hls review of the· jury's verdict. for past and future economic losses, 'and the trial testimony cif
the. plaintiff an.dplaintiff'.s expert-(pp, 19:.24).
EViDENC E
A) .Past and Future Health Insurance
Friefelder testified that the jury awarded past and future health insurance based on the
numbers testified to attriaiby plaintiff's expert (pp;Z0"-21). l>laintifrs expert iticJuded health
insµrance in the loss ofearnings calculation (id); Therefore, crediting_ the trial testimony of
plaintiff's ex;pert, co:upled with plaintiff's trial testimony that he has health insurance from the
date of the a,~cident cp_ntinµing_throughthe presentand that he will qualify for Medi(;are,
friefelder applied a dpllar.;for-dollar_.offset of $281~326.00 for-the past costofrepl acing he"1th
insurance and $28,250.Q0 f(,)rfuture .ht:lalth insurance (19:20-2-5-,_ 20: 1-16;- pp.22-24).
4489/201~ Page.2of7
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However, Friefolder testified that he did not review plaintiff's ·health insurance policy and
therefore was unaware of the cost of the health plan prerniµrn or CO'"payrnents (42: 18-25; 43 :1-
10). He. offered no testfrnony as to the cost of any Medicare _prem1um, .further, the wj.mces_s_ was
aware t4at because plaintiff now resided in Florida~ some ofhis health care.costs may not_ b_e
ccwered_"byhis i11sut:mce (45:2.,.18}.
B): Past Loss or-Earnings
The plaintiff's past loss of earnings was $950,0S-6.00, phis $79,204, representing loss of
arinuity ·contributions (23: 1-7). Plaintiff testi:tied atJrial that he receives a NYCERS "Disability
Pension and Sociai ·Security Disability ·benefits (pp.25-27). Friefelder testified that according to
NYCERS. suinrnary plan description for Tier 4 pensions, at the age of65 with l Oyears of
service, plaintiff is entitled to a di~abiljty pension, equal to the greater than 1/3 of the final
aven~ge. thre~-year salary· or 1~667% multipljed. 30 years . . of service. Therefore,. since. plaintiff had
14 years. of service.=: with-a final av_erage salary of$63~739.00, Friefelder calculatedhis:annmd
disability _pension to be ,$21 ;246.00 wliich equ~ls ·an offset o( $268;326;00 from the date of
accident through the date of the verdict.(27~22-25, 28;1-22,.-32:16-22,.-_pp.47-48) ..:
Plaintiffwa:s also·receiving a social security disability benefit of $1,900~00 pet month or·
$22,800.00 annually (32:15-20). Therefore, Friefedler cakulate_d a further oft'set of$290,423.00
from the date of the accident through the verdict (J3:1 . . 14).
C) · Future Loss of Earn fogs
Based on the.foregoing data andfoonlll as, Friefelder determined tllat defendant is
entitled to ari offset of $378~697.00 for future NYCERS disabil;ty bi;mefits and $545;49 l .00 for
Soci;ll Security Disability Benefits (pp.33-35).
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·Friefelder .also factored into· his •calculations-Cost of Living Adjustments (COLA) for both
NYCERS.·and S-o.cial Security Disability (3"2:1-9,.pp.33-35)~ TheCOLAadjus_tment$ for both are
the same for all recipients regardless of where they reside. in the United States (pp;50~5 l ).
Friefelder;s testimony was-consistent with the Summary Tabie of Collateral Source
_Ofisets (Exhil:,jt B).
ANALYSIS
CPLRf 4545 authorizes a· court to offset or reduce·_awards for past.or.future e:!!:penses in
pe'rsonai"tnjury cases where ••any-such past or future costor expense wasor-wi.11, with.reasonable
certainty, bereplaced or indemnified, in whole odnpart;.from any c:ollateral source 1 except for
life insurance.... "· This section further provides that '~[I]fthe court finds that any such .cost or
expens~ was or will, with reasonabl~ certajnty, be replaced or indemnified fto:rh any .such
collateral sourc~, it shall reduce the amount of the awarq. by such finding, minus an atnounteq1Jal
-to the premiums-paid by the.plaintifffor·such_benefits for the two-yearperiod.irrimediately·
precedin:~. the accrual of s.uch act.io.o and-mj1;1.us an amount. _equal t<;> the projected future cost to·
the plaintiffofmainta ining such benefits? (Harden v Cypress Crest II Condo. Index
#100835/2015 [Ozzi. J., 2023]). the defendants-must establish an entitlementto a collateral
·source· .offset by coming-forward with clear .and co1'v_incing evidence,(Qu??ad av O'Re_illy-Gr~en,
24AD 3d744, 746 [2dDept. 2005]).
A) Health llisnranc:e Offset
Here,_ defendants failed to establish by clear ancl convinq.ing evidep.c:e ai1 .e_p.titlement to a
coilateral source reduction ofpast and future health benefits. Defendants' expert admittedly
could not provide testimony or- documentary--evidence: that an .amount equal to plaintiff's -pasta!'.
fµtl"!,te cost of premiwrts fo maintain such benefits; co"'.'paymerits.-and cleductibles were sµbtracted
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from the requested collateral source offset{CPLR § 4545;.Tri 42:18~25, 43:f-10). This
ie.stimony, together with the lack ofevidence coliceming the costs. associated with Medicare
benefits, warranis a denial ofdefendants; motion for an offset for the cost ofpast and future
health insurance-.
B) Loss of Earnings
Next, while disability retirement benefits are a collateral income source (Kihl v Pfeffer, 47
AD3d 1.54, 164 [2nd Dept 2007], citing Otlen v Chemung County Indus. Dev, .Agency, 87 NY2d"
·81, 89, _[l995],-_s_µch benefits end tlt.age 6.7 whenplaiil.tiff tr_ansitions.to Social.Security
Retirement benefits. Therefore, the offset for future- Social Security Disability bern;liits is limited
to five years and··nine months, i.e., the date of the verdict (5/15/24) to the month before plaintiff's
-67th birthday. -(Bortugno v. Sthindi-er E. Corp.• 2025 NY Slip. Op 30839 ·ru],. *5 (NY County~.-
. establishes that he calculated Kingo,. J.J). Friefelder's testimony this offset over the 15-year life
·expectancy from the date-of the accident ortlyusing plaintiff~s social security disability payment
of $22;800.00 per- year at::a 2.59% ·intl~ti_o:µ rate (3.3 :24.;25 and p.34.). At the hearing, defendants
did not present evidence of plaintiff's projected Social Security Retirement.benefits to obtain a
collaterai sourc.e reduction fqr plaintiff's teinainirtg nine years and _one month_ life expectancy
after attaining the age of 67.
Based on the evidence adduced at the hearing, defendants are entitled to a 1) past
,.collateral income source offset of-$268,3.26;00 for NYSCE.RS Disability Benefits and
$290,423.00 for Social Security Disabjlity beni;::fits an4 -2) future collater;tl ·income.source-offset
·$378,697.00 :for NYSCERS Disability penefits (Ex. B). The offset for future Social Security
Disability benefits must be recalculated for the -five year ancl nine month period- fro.riJ, the:. date of·
the. verdict through the. nionth b~fore plaintiff's ,67th birthday.
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Accordingly, itis hereby
ORDERED that defendants have established, with reasonable certainty and by clear and
convincing evidence, that plaintiff's Social Security Disability benefits are a collateral source
subject to an offset under CPLR § 4545 as these benefits are highly probable to continue untj_l
plaintiffattaihs the age of 67, and it is further
ORDERED that defendants are entitled to art offset for future Social Security Disability
benefits based oh a. 5;9-year projection when plaintiff attains the age of 67 rather than a 15-year
projection, and it is further
ORDERED that plaintiff's future Social Security Disability benefits shall be recalculated
based on the 5. 9-year projection. at the 2.59% inflation rate and plaintiff shall. submit an amended
proposed judgment reflecting this recalculation, and it is. further
ORDERED that defendants have established, with reasonable certainty and by dear and
convincing evidence, that plaintiff's past Social Security Disability benefits. and NYSCERS
Disability Pension are collateral sources subject to art offset underCPLR § 4545 as these benefits
are highly probable to continue, and it is further
ORDERED that plaintiff shall submit anamend_ed proposedjudgment reflecting past
collateral income source offsets of $268,326.00 for NYSCERS Disability Benefits an\i
$290,423.00 for past Social Security Disability benefits, ancl it is further
ORDERED that defendants have established.with reasonable certainty ancl by clear and
cqnvincing evidence, that plaintiff's future NYSCERS Disability Pension is a collateral source
subject to an offset under CPLR §. 4545 ·as. these benefits are highly probable to continue; and. it
is further
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ORDERED tp.at plaintiff.shall sul)lnit a:µ am.end,ed proposedjudgment reflectfo~ a future
crillatetal Source offset of-$378·,_697 .00 forNYSCERS-- Dh.:iability Benefits, ancj it is -further
ORDERED that defend ants failed to estabHsh, w1th .reasonable certainty aµd by dear and
convincing evidence, an entitlement to an offset for ihe cost of past and future health insurance,
and, it is: further ORDERED tliai plaiµtiff shall submit the amended proposed judgment-within 45 days of
·entry ofthis Order in NYSC'.EF..
This constitutes the decision ~d order ofthe Court.
Bon. Anne J~ Swem_, J.S_.C. :Dated: 3/31/202"5 for Cii,irks use only: MG _ _ MD ___ Motion seq.# _ _ __
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