Ventura v Fisher

[*1] Ventura v Fisher 2004 NY Slip Op 51144(U) Decided on October 6, 2004 Civil Court, Kings County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 6, 2004
Civil Court, Kings County

RAFAEL VENTURA and CESAR VENTURA, Plaintiffs,

against

MALACHAI FISHER, Defendant



5788/97

Loren Baily-Schiffman, J.

This matter was referred to this Court for a collateral source hearing after a trial before Hon. Bernadette Bayne which resulted in a verdict for plaintiffs. Plaintiff infants had sued for damages caused by exposure to lead paint. Defendants sought a reduction in the amounts awarded to plaintiffs for tutoring and higher level counseling [FN1] based upon the availability of a collateral source: the services available free from the New York City Department of Education in their special education program and related services allegedly available pursuant to the federal Individuals with Disabilities Education Act ("IDEA"), 20 USC §1400(c). The collateral source hearing was held on June 30, 2004. The Court gave defendant the opportunity to present a written summation, if made by July 16, 2004. Plaintiffs were given an opportunity to present a written reply to defendant's submission. The Court received the following written submissions from the parties:

July 14, 2004Plaintiffs' cover letter and copies of cases.

July 19, 2004Defendant's cover letter; Affirmation of Paul Bottari and exhibits; and Affidavit of Fred Goldman

July 23, 2004Defendant's cover letter and Affidavit of Fred Goldman

July 28, 2004Plaintiffs' letter to the Court

August 11, 2004Defendant's cover letter and original of Goldman Affidavit

Sept. 2, 2004Defendant's cover letter; newspaper articles; and hearing transcript.

The Court specifically gave the parties an opportunity to present written summations. The Court did not permit the parties to re-open the record to present any further evidence and no request was made by any party to do so. Accordingly, the Court will not consider the exhibits and Affidavit submitted by defendant on July 19, 2004; the Affidavit submitted by defendant on [*2]July 23, 2004 and August 11, 2004; and the newspaper articles submitted by defendant on September 2, 2004.

LAW

At common law, a defendant was not entitled to any offset or reduction of a jury's verdict based upon collateral sources which the plaintiff may receive Bryand v New York City Health & Hospitals Corp., 93 NY2d 592 (1999); Oden v. Chemung County Indus. Dev. Agency, 87 NY2d 81, 85-86 (1995); Giventer v. Rementeria, 184 Misc2d 744, 746 (Sup Ct Richmond Co., 2000). This was altered by statute. CPLR §4545 now allows collateral source information to be taken into consideration by the Court in reducing damages. CPLR §4545(c) provides as follows: In any action brought to recover damages for personal injury . . . where plaintiff seeks to recover for the cost of medical care. . . custodial care or rehabilitation services, loss of earnings or other economic loss, evidence shall be admissible for consideration by the court to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source such as insurance. . . social security. . . workers compensation or employee benefit programs. . .. If the court finds that any such cost or expense was or will, with reasonable certainty, be replaced or indemnified from any collateral source, it shall reduce the amount of the award by such finding. . . . In order to find that any future cost or expense will, with reasonable certainty, be replaced or indemnified by the collateral source, the court must find that the plaintiff is legally entitled to the continued receipt of such collateral source, pursuant to a contract or otherwise enforceable agreement, subject only to the continued payment of a premium and such other financial obligations as may be required by such agreement.

(Emphasis added)

In order to obtain an offset from a collateral source, the defendant must prove by clear and convincing evidence that it is reasonably certain that the benefits will be received. Caruso v. LeFrois Bldrs, 217 AD2d 256, 259 (4th Dept, 1995); Giventer v. Rementeria, supra at 747. Reasonably certain has been interpreted to mean "highly probable". Id. As the statute is in derogation of the common law, it must be strictly construed. Oden v. Chemung Co. Indus. Dev. Agency, supra at 85-6. The purpose of the statute was enunciated by Chief Judge Kaye in Bryant v. NYCHHC, supra at 602: "CPLR 4545 was intended to eliminate double recoveries, not provide defendants and their insurers with an "undeserved windfall." Thus, in Oden (supra, 87 NY2d, at 87), we made clear that "only those collateral source payments that actually replace a particular category of awarded economic loss may be used to reduce the injured's judgment," [*3]

TESTIMONY

At the hearing on June 30, 2004, defendant presented the testimony of

Edmond Provder, a vocational and rehabilitation counselor. He testified that through the New York City Department of Education Special Education Program, tutoring is available pursuant to the IDEA and the No Child Left Behind Program. For these services to be made available to the infant plaintiffs, their parent or guardian would apply for such services to the local school. The school would then determine if the child is eligible for the services and if found to be eligible and in need of services, they would be provided as part of the child's Individual Education Plan ("IEP") which is created by the Special Education Program. The witness' testimony was clear that the services awarded by the jury in this case would only be provided by the Department of Education if the Special Education Program made an independent determination that the services were required by the child. Moreover, the witness testified that if special education services were provided to the infant plaintiffs, the parent would have no input on who would provide the services to the children.

DISCUSSION

Defendant argues in support of its position that because the infant plaintiffs are eligible for federal aid for their future care, they will be provided with a collateral source offset and "the verdict must be reduced to reflect the offset and prevent a double recovery and windfall to the plaintiffs". Affirmation of Paul J. Bottari. It is important to note that during the trial, defendant argued that the infants were not entitled to special education services because there was nothing wrong with them. Moreover, in colloquy during the hearing, the attorneys informed the Court that the infants had been receiving special education services but a determination had been made that they no longer required such services and were not longer receiving them.

As CPLR §4545c makes it clear, the showing that needs to be made by defendant seeking a collateral source offset is that an item of damages awarded by the jury will "with reasonable certainty" be replaced by the collateral source. The testimony elicited by defendant at hearing along with the experience of the infant plaintiffs recounted by counsel makes it clear to this Court that special education services will most likely with reasonable certainty not be provided to the infant plaintiffs. The most telling point made by defendant's witness was that in order to receive special education services, the Department of Education would make an independent determination as to the infants' eligibility for such services and then determine specifically what services were needed and would be provided. This is a far cry from the "reasonable certainty" standard set forth in the statute.

Plaintiffs cite several cases where the Court rejected defendant's argument that a jury verdict should be reduced because the IDEA or special education provided in a public school is a collateral source . Giventer v. Rementeria, supra; Andrialis v. Snyder, 159 Misc 2d 419; Ursini v. Sussman, 143 Misc2d 727(Sup Ct NY Co, 1993); Delaney v. Misericordia Hosp (Sup Ct Bx Co, Index No. 16596/86); Depradine v. New York City Health & Hosp Corp (Sup Ct Kings Co, Index No. 95741/85, aff'd, 255 AD2d 288 [2d Dept 1998], aff'd 93 NY2d 592[1999]); Royal v. [*4]Booth Mem Hosp, (Sup Ct Queens Co, Index No. 11718/89). In each of these cases, the defendant's expert failed to establish that the services found by a jury to be required would be provided with reasonable certainty by a public school.

Giventer held that the jury's award of nursing services could not be replaced by "school therapies which are not equivalent in nature". 184 Misc2d at 751. Justice Gammerman in Andrialis was persuaded to find that special education services were not a collateral source by the fact that entitlement to these services would be based on an independent determination by the Committee on Special Education of the child's entitlement to services and what services were needed. Justice Gammerman also noted that the parents could not choose the child's therapist but would be relegated to therapists selected by the Board of Education who would be paid a "contractual rate arrived at by competitive bidding". 159Misc2d at 428 and in footnote 2 asked "Is it plaintiff's burden, having persuaded a jury that certain therapy is needed, to be required to also persuade a Special Education committee of that need?" The Court in Royal was also concerned that the persons providing the services to the child were not "subject to parental choice or approval" and were limited to those who would accept the contract rate. Quoted in Giventer, supra. at 753.

The Court holds that the services available through the New York City Department of Education will not with reasonable certainty replace any item of damages awarded by the jury in this case. Accordingly, the relief sought by defendant in the collateral source hearing is denied in all respects.

This constitutes the Decision and Order of this Court.

DATED:October 6, 2004 _______________________________

HON. LOREN BAILY-SCHIFFMAN Footnotes

Footnote 1:The jury awarded Cesar Ventura the sum of $50,240 for future tutoring and higher level counseling and Cesar Ventura the sum of $172,000 for tutoring and higher level counseling.