Szpakowski v Shelby Realty, LLC

[*1] Szpakowski v Shelby Realty, LLC 2007 NY Slip Op 51186(U) [15 Misc 3d 1146(A)] Decided on June 11, 2007 Supreme Court, New York County York, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2007
Supreme Court, New York County

Marek Szpakowski and Agnes Szpakowski, Plaintiffs,

against

Shelby Realty, LLC, Forthright Development Co., LLC, and Metropolitan Hotels, LLC, Defendants.



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Attorneys for Plaintiffs:

Robert S. Kelner, Esq.

Kelner & Kelner, Esqs.

140 Broadway 37th Floor

New York, NY 10005

Attorneys for Defendant/Third-Party Plaintiff:

Doron Rosenheck, Esq.

McCabe, Collins, McGeough & Fowler, LLP

346 Westbury Avenue

P.O. Box 9000

Carle Place, New York, NY 11514

Louis B. York, J.

Co-defendant Shelby Realty, LLC ( "Shelby")moves for a collateral source hearing pertaining to the award after trial to determine whether past and future Social Security payments to plaintiff Marek Szpakowski should be deducted from lost earnings. At oral argument, plaintiffs' counsel agreed to reduce the judgment by $10,000 to account for Social Security payments that had already been paid to defendant. However, the record and plaintiffs' attorney's statements at trial establish that no Social Security payments are currently being made to plaintiff. He also argues, that Social Security has not affirmed that any payments will continue. Evaluation of continued payments is made independently by Social Security of any determination made by the jury. Shelby also argues that plaintiff's wife's medical insurance should be examined at the collateral source hearing to determine whether plaintiff is entitled to future payments from her medical insurance as an offset to the award for future lost earnings as well as whether there have been past payments for medical expenses.

The opposition to the motion points out the technical deficiencies of defendant's motion. This motion was ordered to be served by overnight mail by March 30. Nevertheless, the papers were served by UPS ground service on March 30, 2007 at 5:57 p.m., thereby arriving three days later on April 2, 2007 at 6:41 p.m. Moreover, the papers were served without the supporting affirmation of defendant's counsel which was subsequently faxed to plaintiffs' attorney.

Although counsel states that he had consistently asked for a collateral source hearing, which the Court had assured him would be held, the proposed judgment was submitted before the collateral source hearing was scheduled. The plaintiffs' opposition points out that the Court issued an order dated September 15, 2006 which adopted the parties' stipulation of June 23, 2006 except for one item in the stipulation not germane to the present issue. That stipulation required that if the parties could not reach agreement as to the collateral source reductions within two weeks, the Court would be notified forthwith to set a date for the collateral source hearing. Although no agreement was reached on the collateral source hearing within the two-week period, no such request of [*2]the Court was made until March 29, 2007, eight months after the plaintiffs submitted the parties' stipulation, and only after plaintiff had submitted the proposed judgment. The Court also notes that the attorney for Forthright Development Company also submits an affidavit in support of the motion for a collateral source hearing.

Once again, we are faced with the glaring disregard of the parties' time limitations contained in their own agreement and the Court's order implementing that agreement. The Courts will no longer ignore these glaring omissions of the requirements where there is no adequate explanation for the delay (Brill v City of New York, 2 NY3d 648 [2004]; Perini Corporation v City of New York, 16 AD3d 37 [1st Dept 2005]). "As we made clear in Brill, and underscore here, statutory time frames - like court-ordered time frames are not options, they are requirements, to be taken seriously by the parties. Too many pages of the reports are taken up with deadlines that are simply ignored." Micelli v State Farm Mutual Automobile Insurance Company, 3 NY3d 725, 726-727 [2004] [emphasis added].

While the Court recognizes that those decisions are concerned with motions for summary judgment, the Court believes that the policy evinced by the Appellate Courts applies equally to Court orders and so-ordered stipulations.

The Court notes that even if it had scheduled a collateral source hearing, it is highly unlikely that it would have subtracted any Social Security payments. That plaintiff will receive payments for his disability is at this time speculative since he has been given no assurances that such payments are forthcoming. Deduction of collateral source payment is in derogation of the common law rule excluding such payments from consideration. Therefore, the issue is to be narrowly construed and only if the evidence is clear and convincing - i.e., is highly probable, a standard which is significantly more than the more probable than not standard for a preponderance of evidence, will an offset be made (See, Giventer v Rementeria, 184 Misc 2d 744, [Sup Ct. Richmond Cty, 2001] and the cases cited therein at 747). Those standards do not appear to be met here. The same would apply to the claim concerning the co-plaintiff wife's medical insurance.

Accordingly, it is

ORDERED that the defendants' request for a collateral source hearing is denied.

Dated: June, 2007Enter:

_______________________

Louis B. York, J.S.C.