Niurka Andino, Respondent-Appellant,v.Ronald Mills, et al., Appellants-Respondents. (And a Third-Party Action.)

Brief

N.Y.Apr 24, 2018

APL-2017-00067 Bronx County Clerk’s Index No. 26798/04 Court of Appeals STATE OF NEW YORK NIURKA ANDINO, Respondent-Appellant, against RONALD MILLS and THE NEW YORK CITY TRANSIT AUTHORITY, Appellants-Respondents. RONALD MILLS and THE NEW YORK CITY TRANSIT AUTHORITY, Third-Party Plaintiffs, against NEW YORK CITY POLICE DEPARTMENT and RAFAEL VILLEGAS, Third-Party Defendants. >> >> BRIEF FOR RESPONDENT-APPELLANT SULLIVAN PAPAIN BLOCK MCGRATH & CANNAVO P.C. Attorneys for Respondent-Appellant 120 Broadway, 18th Floor New York, New York 10271 212-732-9000Of Counsel: Brian J. Shoot Paul Dansker Date Completed: September 13, 2017 To Be Argued By: Brian J. Shoot Time Requested: 30 Minutes Table Of Contents PRELIMINARY STATEMENT 1 THE COLLATERAL SOURCE ISSUE 2 QUESTIONS PRESENTED 4 JURISDICTIONAL STATEMENT 7 STATEMENT OF FACTS 7 The Plaintiff, The Subject Accident, And The Medical/Vocational Proof Adduced At Trial 7 The Plaintiff: Niurka “Julie” Andino 7 The Subject Accident, And The Defendants’ Adjudged Responsibility For It 8 Ms. Andino’s Medical Course, Her Attempts To Return To Work, And Her Ultimate Placement On Accidental Disability ... 8 The Testimony Of Pension Board Panelist Dr. Julius Mendel Concerning Ms. Andino’s “Obvious[ly]” Disabling Injuries 11 The Testimony Of Plaintiff s Medical Witnesses Concerning Her Current And Prospective Injuries And Limitations 11 “I Don’t Want To Tell People I’m Retired”; Ms. Andino’s Own Testimony 14 The Plaintiffs Unrebutted Proof Concerning Her Economic Loss 15 Computation Of Lost Income 16 Computation Of The Lost Pension Benefits 18 i The Jury’s Verdict And The Parties’ Stipulation Concerning The Verdict 19 The Collateral Source Hearing, And The Parties’ Respective Positions At That Time 20 The Defendants’ Collateral Source Proof 20 City-Employed Attorney Nicole Giambarrese’s Testimony Concerning The Nature And Make-Up Of The ADR Payments 21 Economist Goldman’s Testimony That Correct Application Of The Collateral Source Rule Should Here Leave Ms. Andino With Less Than Nothing For Lost Future Income 22 The Parties’ Respective Positions In The Trial Court 23 25THE RULINGS BELOW The Trial Court’s Refusal To Depart From Controlling Precedent, And Its Consequent Denial Of Defendants’ Post- Trial Application To Evade Responsibility For The Plaintiffs Economic Loss 25 The Appellate Division’s Modification, Ostensibly Premised On Defendants’ Erroneous Representation That Plaintiff Had Below “Admitted” That The ADR Payments Should Be Deducted From The Award For Future Lost Pension 27 ii ARGUMENT POINT I THE TRIAL COURT WAS CORRECT IN RULING THAT THE DEFENDANTS FAILED TO ESTABLISH THE PREREQUISITE “CLEAR AND CONVINCING” ENTITLEMENT TO A COLLATERAL SOURCE SET-OFF 31 Settled Law Requires Any Defendant Who Seeks A Collateral Source Reduction To Establish By “Clear And Convincing Evidence” That There Is A “Direct Correspondence” Between An “Item Of Loss” In The Case And The “Collateral Reimbursement” Which The Defendant Seeks To Deduct From The Plaintiffs Award . A. 32 Historically, ADR Benefits Displaced ODR Benefits In Those Circumstances In Which The Disabled Police Officer Was Deemed To Warrant Enhanced Benefits As A Reward For His Or Her Past Services B. 37 C. There Was No “Direct Correspondence” Between The Items Of Loss And The ADR Benefits Which Defendants Sought To Deduct From The Plaintiffs Recovery 40 The Award for Loss of Future Earnings 401. Different Payment Periods 40(a) No Correspondence As To Amounts 41(b) No Correspondence As To Amounts Paid To Ms. Andino’s Children (c) 41 42(d) “Strings” And No “Strings” 43(e) “Cap” vs. No Cap The Award for Future Loss of Pension Benefits 442. iii D. The Weight Of Precedent Holds That A Police Officer’s ADR Benefits Do Not Directly Correspond To A Tort Award Of Lost Future Income 46 The Defendants’ Ultimately Unconvincing Efforts To Distinguish Oden 1. 48 2. The Three Appellate Division Rulings That Actually Involved Disabled New York Police Officers, All Rendered In The Plaintiffs’ Favor 50 3. The Weight Of Authority 56 POINT II AT THE VERY LEAST, THE REDUCTIONS, IF ANY, SHOULD BE LIMITED TO THOSE PORTIONS OF THE ADR BENEFITS THAT ARGUABLY CORRESPOND TO THE AWARDS FOR LOST FUTURE INCOME AND FOR FUTURE LOSS OF PENSION 58 The Set-Off Defendants Requested With Respect To Ms. Andino’s Award For Lost Future Earnings Was Mathematically Indefensible A. 58 B. The Set-Off Defendants Ultimately Received With Respect To Plaintiffs Award For Loss Of Future Pension— Leaving Plaintiff With No Award At All — Was Also Indefensible . 61 CONCLUSION 63 iv Table Of Authorities Table Of Cases Bitchatchi v Bd. of Trustees of New York City Police Dept. Pension Fund, 20 NY3d 268 [2012] 44, 45 Bryant v New York City Health and Hosps. Corp., 93 NY2d 592 [1999] 36 Fisher v Mascardo, 94 AD3d 524 [1st Dept 2012] 36 Fisher v Qualico Contr. Corp., 98 NY2d 534 [2002] .... 35 Giannettino v McGoldrick, 295 NY 208 [1946] . 37 Gonzalez v Iocovello, 249 AD2d 143 [1st Dept 1998], tiff'd 93 NY2d 539 [1999] 27, 50,51,54 Gordon v Monaghan, 309 NY 336 [1955] 37 Iazzetti v City of New York, 256 AD2d 140 [1st Dept 1998], rev’d on other grounds, 94 NY2d 183 [1999] 32,51,52 Inchaustegui v 666 5th Ave. Ltd. Partnership, 96 NY2d 111 [2001] 32 Johnson v New York City Tr. Auth., 88 AD3d 321 [1st Dept 2011] 25, 27, 54, 56 Lichtenstein v Bd. of Trustees of Police Pension Fund of Police Dept. of City of New York, Art. II, 57 NY2d 1010 [1982] 37 v Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81 [1995] passim Pieme v Valentine, 291 NY 333 [1943] 38 Shue v Red Cr. Cent. School Dist., 266 AD2d 899 [4th Dept 1999] 36 Stolowski v 234 E. 178th St. LLC, 89 AD3d 549 [1st Dept 2011] 36 Terranova v New York City Tr. Auth., 49 AD3d 10 [2d Dept 2007] 52, 53 Uniformed Firefighters Ass'n, Local 94, IAFF, AFL-CIO v Beekman, 52 NY2d 463 [1981] 38 Walsh v Scoppetta, 18 NY3d 850 [2011] 39 Statutes And Other Authorities Administrative Code of City of N.Y. § 13-251 44 Administrative Code of City of N.Y. § 13-252 45 Administrative Code of the City of N.Y., § 13-254 46 Administrative Code of the City of N.Y. § 13-254[a] 43,44 Administrative Code of the City of N.Y., § 13-257 45 Administrative Code of the City of N.Y., § 13-258 46 Administrative Code of the City of N.Y. § 1318-4.0 38 vi CPLR § 4545 passim CPLR § 4545[a] 33, 33n CPLR § 4545[b] 52 CPLR § 4545[c] 33n CPLR § 5045[b] 40,41 41CPLR § 5046 CPLR § 5602[b][2][ii] 7 Edward TERRANOVA and Deborah Terranova, Plaintiffs- Respondents, v. THE NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant., 2006 WL 4960375 53 43General Municipal Law § 208-d In the Matter of the Application of Robert WALSH, Brief for Petitioner-Appellant, 2011 WL 7452111 at 8 39 Mario IAZZETTI and Theresa Iazzetti, Plaintiffs-Appellants, v. THE CITY OF NEW YORK, Defendant-Respondent., 1999 WL 33660102 .. 52n Ophelia JOHNSON, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant., 2010 WL 8919333 .... 55 Ophelia JOHNSON, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant., 2010 WL 8919335 .... 55 vii PRELIMINARY STATEMENT This personal injury action arises from an August 2004 accident in which defendant Ronald Mills drove a Transit-owned truck into the passenger side of a marked police car that was responding to an emergency radio call (R.116b, 121b, 130b-131b, 136b, lSSb-ÿb).1 Plaintiff Niurka “Julie” Andino, then a 36-year- old New York City police officer (R.396b), was riding as passenger-recorder in the police car (R.427b). By March of 2013, which is when the case came to trial before the Honorable Lisbeth Gonzalez (Superme Court, Bronx County) and a jury, Ms. Andino was an unemployed, 44-year-old woman who lived with constant, unrelenting pain as a result of the neck, back and knee injuries (described below) she sustained in the subject accident (R.331b, 880b-882b). The accident also left her with organic brain damage that permanently impaired her very ability to think (R.604b-608b, 624b). The impact of her injuries was so pronounced that the judge who presided over the two-week trial stated for the benefit of the appellate record that “all of us saw” that the plaintiff was “someone who’s ... barely able to sit still or stand still because she is writhing in pain in a nonstop fashion” (R.1481b- 1482b). All such citations refer to page numbers in the Record on Appeal. Although defendants contested liability at trial and urged that the driver of the police car was solely at fault (R.1354b-1356b), the jury instead found defendants solely at fault (R.1449b-1450b). At this juncture, the only remaining issue relates to the defendants’ post-trial application under CPLR § 4545, the “collateral source” statute. THE COLLATERAL SOURCE ISSUE Defendants below urged that Andino’s awards for lost future earnings and future loss of pension should be reduced by the total amount of the accidental disability retirement (“ADR”) benefits Andino would prospectively receive over the remainder of her life as a New York City police officer who was permanently disabled by virtue of injuries she sustained in the line of duty (R.994-1007). Contrary to defendants’ current representation that “in the Supreme Court plaintiff admitted that the accident disability benefits correspond to [her] lost service pension benefits” (Defts. Br. at 17), plaintiff there emphatically contended that the “defendant TA has failed to prove with ‘reasonable certainty’ its entitlement to any collateral source setoffs by ‘clear and convincing evidence’ and is therefore not entitled to collateral source reductions as to any of plaintiffs economic damages [emphasis added]” (R.1017). The parties’ dispute regarding the collateral source issue largely turned upon application of the principles this Court set forth in its ruling in Oden v Chemung 2 County Indus. Dev. Agency, 87 NY2d 81, 87 [1995]. The Court there held that “a direct correspondence between the item of loss and the type of collateral reimbursement must exist before the required statutory offset may be made.” Defendants below contended that those courts that had construed that language literally had erred in so doing (Defts. App. Div. Br. at 62-63), while plaintiffs urged both at trial (R.4b-5b) and in the Appellate Division (Plaintiffs App. Div. Br. at 69) that the Oden Court had meant what it said. For the reasons detailed in Point I of this brief, especially including that the ADR benefits that defendants here covet were created to reward disabled police officers for their past sacrifices, plaintiff submits that the trial court was correct in ruling that there was no “direct correspondence” in the case at bar between the items of loss and the ADR benefits that defendants claimed to constitute collateral source payments within the meaning of CPLR § 4545. For the reasons explained in Point II of this brief, plaintiff further submits that even if defendants were entitled to some sort of a collateral source set-off, they were certainly not entitled to the reductions they actually sought. While this is not at all evident from the defendants’ brief to this Court, their position below was that the three-quarters ADR payments that Ms. Andino would now receive by virtue of having been disabled by line-of-duty injuries would somehow exceed the total lifetime earnings she would have earned had she not been injured (R.107-108, 3 1002), with the consequence that she should receive nothing at all for her lost future earnings. See pages 22 to 25, infra. QUESTIONS PRESENTED Where plaintiff Niurka Andino’s accident disability retirement (“ADR”) benefits did not correspond in amount, duration, or rationale to any of the jury’s awards (see pages 40 to 46, infra) and where the legislative history indicates that the differential between the ADR benefits and the less generous ordinary disability retirement (“ODR”) benefits was intended to reward the disabled officer for his or her past sacrifice in City service (see pages 37 to 39, infra), did the trial court err in concluding that defendants failed to establish that the plaintiffs ADR benefits constituted a collateral source that should redound to the defendants’ benefit rather than that of the plaintiff-police officer? 1. Supreme Court ruled defendants “failed to establish with reasonable certainty” that the jury’s awards for lost future earnings or lost future pension were or would be “replaced or indemnified from any collateral source” (R.27a). The Appellate Division ruled that Supreme Court was correct in denying defendants’ application for reduction of the jury’s award for lost earnings (R.1041). However, in a single sentence that was ostensibly prompted by the defendants’ erroneous representation (first made in their Appellate Division Reply Brief) that plaintiff had below admitted that her ADR benefits should be deducted from her award for lost future pension 4 (Defts. App. Div. Reply Br. at 10-11), the Appellate Division further ruled that the jury’s award for future loss of pension benefits “should have been offset by the total amount that plaintiff was projected to receive under that disability pension, effectively reducing that category of damages to zero” (R.1041-1042). For the reasons stated in Point I of this brief, plaintiff submits the trial court’s ruling was correct. Notwithstanding that plaintiff Niurka Andino was at trial approximately three years from normal retirement age (R.68-69, 893-907), and notwithstanding that she could have afterwards earned unlimited sums from outside employment without diminution of her ADR benefits (R.68), defendants and their economist sought to reduce Andino’s award for lost future income not by the ADR payments she was projected to receive over the next three years but instead by the total amount of the ADR payments that she was projected to receiver over her entire 37-year life expectancy, with the ultimate consequence that the reduction defendants sought would leave Ms. Andino with literally nothing as compensation for her lost future earnings (R.107-108, 1002). Assuming, arguendo, that some portion of Andino’s projected ADR benefits should have been deducted from her award for lost future income, were defendants entitled to the deductions they in fact sought? 2. Inasmuch as the lower courts ruled that defendants were not entitled to deduct any of plaintiffs ADR benefits from her award for lost future earnings, they never reached the question above. 5 Plaintiff submits that for the reasons stated in Point IIA of this brief any reduction should be limited to defensible bounds. 3. Assuming, arguendo, that some portion of Andino’s ADR benefits should be deducted from her award for lost future pension benefits, should the deduction be limited to that part of her ADR benefits that are not paid for the sole purpose of rewarding her for her sacrifice in City service? Also, should there at least be a “direct correspondence” with respect to the time of payment, such that her award for lost pension benefits for any particular year is reduced only by the ADR benefits she is projected to receive in that particular year? The trial court held there should be no reduction at all (R.27a-28a). The Appellate Division impliedly ruled that every single dollar that plaintiff would ever receive in ADR payments — regardless of when it would be received, and regardless of why it was being paid — should accrue to the defendants’ benefit. But the Court had been told, and may have believed, that plaintiff had conceded the point. See pages 28 to 30, infra. Plaintiff submits in Point IIB of this brief that any reduction should be limited to the sums that were not specifically intended as a reward for her sacrifice. Plaintiff additionally submits in Point II of this brief that, for obvious reasons, there must be some temporal correspondence between the jury’s award and the collateral source that is used to reduce the jury’s award. 6 JURISDICTIONAL STATEMENT The Court has subject matter jurisdiction to hear the appeal pursuant to CPLR § 5602[b][2][ii], in that the appeal is taken from a final judgment (R.1027- 1038) “where the appellate division has made an order on a prior appeal in this action [R.1039-1041] which necessarily affects the final judgment ... and the final judgment ... is not appealable as of right ...” STATEMENT OF FACTS The Plaintiff, The Subject Accident, And The Medical/Vocational Proof Adduced At Trial The Plaintiff; Niurka “Julie” Andino Plaintiff Niurka “Julie” Andino graduated the Police Academy in 1996 (R.404b). She testified at trial that she had always “wanted to be a cop” because she “really liked helping people” (R.399b). Ms. Andino was 36 years old when the accident occurred (R.396b). She had three children — , and whom she had raised as a single parent ever since the children’s father left (R.397b). 7 The Subject Accident, And The Defendants’ Adjudged Responsibility For It Ms. Andino was on-duty, riding as passenger-recorder in a marked police car that was responding to an emergency radio call with lights flashing and sirens blaring (R.l13b, 121b, 158b-159b), when defendant Ronald Mills drove a Transit- owned truck into the passenger’s side of the police car (R.l30b-13lb). Although defendants’ trial counsel urged in summation that “the evidence” established that Mills was not in any respect negligent in causing the subject collision (R.1343b-1344b), a jury unanimously concluded that Mills alone was at fault (R.1149b-145Ob). Ms. Andino’s Medical Course, Her Attempts To Return To Work, And Her Ultimate Placement On Accidental Disability From August 18, 2004 (date of accident) until March 7, 2013 (date of trial), plaintiff Niurka Andino was treated by a succession of orthopedists, physiatrists, pain management specialists, and other doctors, some of whom testified at trial. Starting with the injury to her left knee, Andino testified at trial that she still suffered from knee pain almost a decade after the subject collision (R.l132b- 1133b). Dr. Ronald Krinick, the orthopedic surgeon who performed three post¬ accident surgeries on the left knee (R.484b, 496b-497b, 513b), testified that the anatomical reason for the pain was that Ms. Andino had no cartilage at all in some 8 areas of the knee (R.512b-513b) with the consequence that every step necessarily entailed painful bone-on-bone movement (R.512b-513b, 962b-963b). The collision also caused a nerve impingement, visualized on a nerve conduction study, at the C-5/C-6 level of Ms. Andino’s neck (R.267b-269b). Her treating doctors prescribed and Andino underwent 116 therapy sessions (not a typographical error) in an unsuccessful effort to relieve her neck pain and increase her mobility (R.259b-260b). The doctors eventually resorted to epidural injections, consisting of a combination of steroids and anesthesia into Andino’s cervical spine in an effort to render the pain and spasms bearable (R.31lb). Over the years, she underwent too many epidural injections to count (R.882b-883b). She was still receiving them as of trial (R.882b-883b). Not least, Ms. Andino also sustained permanent brain damage. Dr. Orsuville Cabatu, who became Andino’s primary treating physician in the aftermath of the accident, was from the outset concerned by the obvious symptoms of head injury (i.e., headaches, vertigo, and dizziness) and accordingly referred Andino to Dr. Aric Hausknecht, a neurologist (R.258b-259b). Dr. Haushkneht ultimately concluded that Andino could function independently but had permanent impairments of concentration, speech and memory that affected her “everyday life” (R.584b-586b). 9 Midst the surgeries, the hundred-plus physical therapy sessions, and the too- many-to-count epidural injections, Ms. Andino repeatedly attempted to return to her job as a police officer, the job in which she had taken such pride. She returned to work perhaps a month after the accident, albeit on limited duty where she would remain indoors (R.1119b-1120b). Even though she was far from well, she eventually went back to full duty because she was “tired of working inside doing almost nothing” and could get back on patrol only if she went back to full duty (R.1121b). Andino was promoted to sergeant after her second (February 2007) knee surgery (R.1123b). She testified that she had passed the sergeant’s examination prior to the subject accident and actually failed the exam when she tried re-taking it after her accident (R.1124b). However, her name was on the earlier list and she thus was promoted to sergeant (R.1124b). After being promoted to sergeant, Andino “just kept fighting with [herself]” as to whether she should put her papers in and retire (R.1124b). On the one hand, she “loved wearing the uniform” and “[g]oing out there and helping people” (R.1126b-1127b). She also felt she had “earned” her position as a police sergeant (R.1126b-1127b). On the other hand, she was in constant pain (R.1133b). In the end, she applied for the ADR benefits. 10 The Testimony Of Pension Board Panelist Dr. Julius Mendel Concerning Ms. Andino’s “Obviousllvl” Disabling Injuries Dr. Julius Mendel, who was part of the three-member Police Department Pension Board that deemed Ms. Andino disabled from her employment as a police officer (R.1087b, 1106b), testified that it was readily apparent that Ms. Andino “had little, if any, motion of her left knee” (R.l102b), that her neck was restricted in both flexion and lateral rotation (R.l104b), and that the injury to her left shoulder prevented her from raising her arm above horizontal (R.l104b). She was also “unable to grasp anything” (R.l105b). The Panel determined that the “internal derangement of the left knee” of itself disabled Ms. Andino from being a police officer, rendering her other injuries moot (R.l107b-1108b). It further concluded “[t]he competent causal factor” of her disability was “the line of duty injury of August 18, 2004” (R.l106b). Ms. Andino’s retirement on accidental disability benefits became effective on August 30, 2009 (R.941). The Testimony Of Plaintiffs Medical Witnesses Concerning Her Current And Prospective Injuries And Limitations Dr. Orsuville Cabatu. who specialized in physical medicine and rehabilitation (R.224) and first saw Ms. Andino approximately three weeks after the accident (R.238b), testified that the neck injury was “absolutely” “permanent in 11 nature” (R.276b). Looking ahead, he would continue to prescribe physical therapy “for life” since that would “alleviate some of the pain that she has at certain times” (R.278b). Dr. Aric Hausknecht. who was Board-certified both in neurology and pain management (R.577b) and was affiliated with (amongst other hospitals) Beth Israel Medical Center (R.578b-579b), first saw Ms. Andino approximately six weeks after her accident (R.587b). Dr. Hausknecht testified that as of trial Ms. Andino was taking Metaxalone, Lyrica and Ibuprofen for pain and/or to prevent pain (R.622b-623b). She nonetheless suffered from headaches that were “totally debilitating” when they occurred (R.620b-621b). She was also “still having problems with her memory as well as difficulty with concentration” (R.622b). Dr. Hausknecht concluded with a reasonable degree of medical certainty that Ms. Andino had sustained axonal shearing in the subject accident (R.604b-608b). Over the years, there had been some improvement but also some worsening of the patient’s symptoms. On the one hand, the patient’s aphasia had improved (R.662b- 663b). On the other hand, “[h]er headaches seemed to have gotten worse” (R.662b-663b). “[F]or the most part,” Ms. Andino’s condition was “about the same” when examined in February of 2013 as it had been back in 2008 (R.662b- 12 663b). Dr. Hausknecht testified that it was “unlikely that any further recovery will occur” (R.624b). Dr. Ronald Krinick, the orthopedic surgeon who operated on Andino’s left knee three times (R.484b, 496b-497b, 513b), was Board-certified in orthopedic surgery (R.458b) and Chief of Orthopedic Surgery at New York University Downtown Hospital at the time of the surgeries (R.461b). Dr. Krinick testified that the most recent surgery on the knee, performed on July 11, 2012, had entailed a partial medial meniscectomy, a partial lateral meniscectomy, a chondroplasty of the patella, and a chondroplasty of the anterior femur (R.513b, 244). Dr. Krinick last saw Ms. Andino on January 17, 2013, which was approximately two months before trial (R.523b). By that point, Ms. Andino was “complaining about the right knee” (R.522b) and also of lower back pain (R.525b- 526b). Dr. Krinick testified that the injury to the right knee, which he diagnosed as a tom medial meniscus (R.524b-525b), was secondary to the injuries of the left knee because “if you’re not weightbearing on one knee” and “[yjou’re putting all the pressure on the other knee” “that structure will eventually fail” (R.522b, 525b). Ms. Andino’s lower back injury was likewise “highly consistent with somebody who’s been walking because of an abnormal knee for quite sometime” (R.538b). 13 As to the future, Dr. Krinick testified that Ms. Andino would eventually require total replacement of her left knee (R.541b). The only matter in doubt was when she would need it and whether she would need to do it more than once (R.541b). Dr, Andrew Brown, who was Board-certified in physical medicine and rehabilitation (R.979b), testified that even apart from her cognitive limitations — which Dr. Brown did not evaluate since he was not a neurologist (R.1018b) — Ms. Andino’s chronic pain of itself impaired her ability to concentrate and thus process information (R.1013b). Further, that disability would become more pronounced with the passage of time inasmuch as part of the problem with chronic pain is that it takes “less and less stimuli to produce more and more pain” (R.1012b). As a consequence, Ms. Andino was “permanently” and “totally” “unable to participate in gainful employment” (R.1008b-1009b). “I Don’t Want To Tell People I’m Retired”; Ms. Andino’s Own Testimony Ms. Andino testified at trial that the pain in her neck was “constantÿ” and was “[frequently” accompanied by pain that extended down to her left hand (R.l129b-1130b). She also suffered from “excruciating” back pain and recurrent migraine headaches (R.425b). 14 She also had “problems focusing, concentrating, and understanding sometimes” (R.1131b). She would sometimes be in the middle of a conversation and forget what she was talking about (R.1131b). Even though it was now four years since she had been retired on accidental disability, she was too “embarrass[ed]” to tell people she was retired and had still told no one apart from her family that she was no longer a police officer (R.1334b- 1335b). The Plaintiffs Unrebutted Proof Concerning Her Economic Loss Kristin Kucsma, formerly a Professor of Economics at Seton Hall University and currently a member of the Tinari Economics Group (R.683b), testified during the trial itself as to the amounts of Andino’s lost earnings and lost pension benefits. Although defendants had their own economist (Fred Goldman, who later testified for defendants at the collateral source hearing [R.79-82]), they did not call him or present any other economic proof during the trial itself, with the consequence that Kucsma’s testimony was unrebutted. When defendants later called their economist to testify at the post-trial collateral source hearing, it became apparent why he had not been called as a trial Goldman there admitted that he “agree[d] with her [plaintiffswitness. 15 economist’s] past lost earnings” and also felt that her estimate of the lost future earnings was probably “a close approximation” (R.120). Computation Of Lost Income According to the pertinent collective bargaining agreement, the gross earnings base of a NYPD sergeant in calendar year 2009 (i.e., the year Ms. Andino was retired with ADR benefits) was $85,565 exclusive of overtime, holiday pay, and shift differentials (R.71lb-712b).2 Kucsma assumed that Ms. Andino’s gross earnings base would have increased by 4% per annum during her tenure with the NYPD since the collective bargaining agreement specifically called for that (R.707b). She further assumed that Ms. Andino would have retired from the workforce at 63.93 years of age — meaning on June 17, 2023 — since that was the statistical average for “females who had some college, but no college degree, and who were about thirty-six years of age when they were injured” (R.697b). Notwithstanding that Ms. Andino had attained the rank of sergeant in only ten years with the NYPD (R.400b, 1124b), Kucsma was asked to assume for purposes of her projections that Andino would not have been promoted again 2 Candor requires plaintiffs counsel to acknowledge that this section and several other parts of this brief have been taken verbatim or almost verbatim from the amicus curiae brief that the New York State Trial Lawyers Association submitted to the Appellate Division. Of course, plaintiffs counsel are solely responsible for the accuracy of the statements made herein. 16 (R.708b-710b). Kucsma also omitted any compensation for overtime, holiday pay, or shift differentials even though the existent collective bargaining agreement required such payments (R.707b-708b). After having projected the plaintiffs “gross earnings base” based on those assumptions, Kucsma performed two downward adjustments and one upward adjustment in order to reach her projection of plaintiffs “lost income.” Based upon statistics indicating that the average woman in Ms. Andino’s “category” spends 16.6% of her pre-retirement years outside of the work force for any number of reasons (e.g., sick parent, sprained ankle, whatever), Kucsma reduced the entire earnings projection by 16.6% (R.712b-713b). Based upon the fact that every job including that of a police officer entails certain “job maintenance expenses” (e.g., the cost of transportation to and from work, “a hot dog for lunch,” union dues), Ms. Kucsma reduced the gross projection by another 6% (R.715b). Last, because New York City police officers also receive a small annuity and life insurance benefit for each year of service, Kucsma increased the gross projection by 1% (R.716b). Thus computed, Andino’s total lost income from September 2009 (the date she retired on accidental disability benefits) until March 2013 (date of trial) amounted to $283,422 (R.718b). Going forward, Ms. Andino’s lost income for calendar year 2014 was $95,785 (R.719b). Her total lost future income — from date of trial until the end of her statistical worklife expectancy (age 63.93) — 17 would be $2,392,512 if one assumed she would have remained with the NYPD to the end of her statistical worklife expectancy (R.724b, 640.5). Computation Of The Lost Pension Benefits Kucsma testified that New York City police officers with 20 or more years of service receive an annual pension equal to 50% of the average annual salary over their last five years of employment plus one sixtieth of their total earnings after their 20th service anniversary (R.734b, 640.9). Practically speaking, this means that a police officer who stays on after 20 years of service will receive his or her pension for fewer years but that the annual payments will be greater since the officer’s “average annual salary” and total earnings after 20 years of service will each be greater than with earlier retirement (R.734b-735b). Apart from the base pension, police officers with 20 years of service also receive “variable supplement benefits” of $12,000 per annum from date of retirement until date of death (R.730b-731b, 640.7-640.8). Here, had Ms. Andino retired from the NYPD after 25 years of service, she would have received a total pension of $90,416 per annum (R.733b-734b). Projected to the end of her statistical life expectancy (age 81.6 [R.732b]), such would amount to a gross loss of $2,633,190 (R.640.10-640.11). However, that gross computation included employee contributions that Andino would, by virtue of her disability, not be making. Once those contributions were deducted from the 18 total, the true loss was $2,608,840 (R.733b-734b), as can be seen on the chart that appears at Record pages R.640.10-640.11. The Jury’s Verdict And The Parties’ Stipulation Concerning The Verdict There were no pertinent objections to the trial court’s charge to the jury (R.1397b-1430b). Justice Gonzalez instructed the jury, inter alia, that Ms. Andino was 45 years old (R.1403b) and had a statistical life expectancy of “37 more years” (R.1426b). The jury assessed Andino’s damages as follows (R.1452b-1454b): Past Damages Past Loss of Earnings Past Pain and Suffering And Loss Of Enjoyment Of Life $300,000 $600,000 Future Damages Loss of Future Earnings Cost of Future Medical Expenses Future Loss of Pension Future Pain And Suffering And Loss of Enjoyment Of Life $ 2,400,000 $ 2,100,000 $ 2,600,000 37 years 37 years 37 years $23,000,000 37 years The parties thereafter stipulated to the following modifications of the jury’s .3verdict (R.77-78, 1008): 3 The stipulation, which mainly consisted of substituting Kuscma’s figures in those instances in which the jury had apparently rounded upwards, was without prejudice to the 19 (1) Reduction of the award for Past Loss of Earnings from $300,000 to $283,422; (2) Reduction of the award for Future Lost Earnings from $2,400,000 to $2,392,512; (3) Reduction of the award for Future Loss of Pension from $2,600,000 to $2,490,000; and, (4) Reduction of the pay-out periods for Loss of Future Earnings and Future Loss of Pension from 37 years for each award to 19.24 years and 17.7 years, respectively. R.77-78, 1008. The Collateral Source Hearing, And The Parties’ Respective Positions At That Time The Defendants’ Collateral Source Proof In the aftermath of the verdict, defendants requested a “collateral source hearing” (R.994). Justice Gonzalez granted the request and defendants thereafter called two witnesses to the stand: City attorney Nicole Giambarrese (R.17-75) and economist Fred Goldman (R.79-144). The parties thereafter submitted memoranda defendants’ right to challenge the jury’s damages assessments on other grounds (R.77- 78). 20 stating their respective positions regarding the collateral source issues (R.1001- 1007, 1009-1017). City-Employed Attorney Nicole Giambarrese’s Testimony Concerning The Nature And Make- UP Of The ADR Payments Defendants called Nicole Giambarrese, the New York City Police Pension Fund’s acting general counsel, to provide a purportedly expert and impartial regarding the nature and make-up of the ADR payments that defendants here claimed as a set-off (R.17-65). Ms. Giambarrese had worked full-time for the Pension Fund for less than three years and had previously served as a part-time intern (R.19). Giambaresse testified that accident disability payments are “comprised of three parts”: (1) “a pension attributable to seventy-five percent of the member’s final average salary” (R.29), (2) the member’s own contributions (R.29), if any, and, (3) a third part that she neglected to mention but which the Transit Authority later identified as the “actuarial equivalent of the reserve-for-increased-take-home- pay to which [the member] may then be entitled, if any.” Defts. App. Div. Br. at 68. Giambarrese further testified the three-quarters component of the accidental disability payments would be the same irrespective of the amount of the member’s contributions to the Fund (R.33-34) and that portion of the ADR payments was not 21 subject to federal, state or local taxes (R.36). She conceded that the other two components of the plaintiffs disability payments were subject to federal taxes (R.35-36) and were attributable to member contributions (R.31-32). Giambaresse admitted that Andino’s accidental disability payments were “statutorily guaranteed for life” only if she did not “return to work as a uniformed police officer or violate any of the statutory earnings restrictions on pension benefits” (R.59). Assuming those events did not occur, the payments would cease upon Ms. Andino’s death (R.59). On cross-examination, Giambarrese said that the sum Ms. Andino could permissibly make from outside employment was capped at approximately $68,000 per annum until the 20th year from her hiring (R.67-68) but she could thereafter earn outside income without limit so long as it did not come from the State of New York or one of its subdivisions (R.68). Economist Goldman’s Testimony That Correct Application Of The Collateral Source Rule Should Here Leave Ms. Andino With Less Than Nothing For Lost Future Income Fred Goldman, the defendants’ economist, testified at the collateral source hearing that Ms. Andino would receive $2,545,304 in three-quarters ADR payments over the rest of her life (R.106). Defendants’ position was that the entire sum should be deducted from Ms. Andino’s award for lost future earnings (R.107- 22 108, 1002). Since the award for lost future earnings was $2,392,512 (R.77-78, 1002),4 the end result, according to defendants and their economist, was that Andino now owed them $161,792 as payment for disabling her for the remainder of her statistical worklife (R.107). Defendants’ position was that the “left over” $161,792 in ADR payments should count as a set-off as to the award for future loss of pension (R.1002). That was the only set-off defendants sought as to that award in the trial court (R.1002- 1004). The Parties’ Respective Positions In The Trial Court In the wake of the hearing, defendants submitted a memorandum in which they asserted, (1) Ms. Gambarresse’s testimony purportedly established that “the ADR pension acts as a collateral source as to plaintiffs past and future loss of earnings” (R.1004); (2) this Court’s ruling in Oden, 87 NY2d 81 did not dictate otherwise since“ Oden did not involve a New York City police officer and Oden involved a different type of pension” (R.1005); 4 The jury had awarded $2,400,000, but that figure was reduced per stipulation to $2,392,512 (R.107-108, 1002). 23 (3) per Goldman’s calculations, Ms. Andino should receive only $36,356 of her $283,422 award for past loss of earnings and literally none of her $2,392,512 award for future loss of earnings (R.1002); and, (4) Ms. Andino’s award for future loss of pension award should be reduced by $161,792, from $2,490,829 to $2,329,027 (R.1002). Plaintiffs responsive position was that ADR benefits had been intended as a reward for police officers who placed themselves “in harm’s way” (R.1013), that the testimony “of the TA’s witness, Nicole Giambarrese, Esq.” was “entirely self- serving, conclusory and not probative of anything” (R.1010), and that the Transit Authority “completely failed to carry its heavy burden in the collateral source hearing” (R.1009). Far from conceding that the ADR payments should count as a set-off against the jury’s award for future lost pension (Defts. Br. at 17), plaintiff clearly asserted that defendants were not entitled to any collateral source set-offs (R.1014, 1017): The fact is that the TA has failed to show, by “clear and convincing evidence” and to “a reasonable certainty” that it is entitled to a setoff against plaintiffs awards for past and future lost earnings and future pension benefits. Neither the testimony of Ms. Giambarrese, nor the exhibits offered by the TA at the hearing, establish that there is a “direct match” between plaintiffs ADR and the jury’s awards in those categories. 24 Based upon the above, defendant TA has failed to prove with “reasonable certainty” its entitlement to any collateral source setoffs by “clear and convincing evidence” and is therefore not entitled to collateral source reductions as to any of plaintiffs economic damages. THE RULINGS BELOW The Trial Court’s Refusal To Depart From Controlling Precedent, And Its Consequent Denial Of Defendants’ Post-Trial Application To Evade Responsibility For The Plaintiffs Economic Loss Supreme Court (Justice Gonzalez) wholly denied defendants’ application for collateral source reductions and explained in a six-page decision and order precisely why this Court’s ruling in Oden, 87 NY2d 81 and the Appellate Division’s more recent ruling in Johnson v New York City Tr. Auth., 88 AD3d 321 [1st Dept 2011] compelled it to rule as it did (R.23a-28a). Those rulings, Justice Gonzalez concluded, require the party seeking a collateral source reduction of the awards for lost income to establish a “direct match between the benefit and the loss of earnings award” (R.26a). Further, while the Johnson Court “declined] to hold” that “disability payments can never be substituted for lost earnings” (R.26a), Johnson had involved the very same “collateral source” benefit as involved in this case, an injured New York City police officer’s ADR benefits. Thus, the fact that the First Department had there held the Transit Authority had not met its burden of establishing the requisite 25 “direct match” logically meant that the same conclusion must follow at bar unless the Transit Authority’s proof in this case was significantly more convincing than the proof deemed unavailing in Johnson (R.26a-27a). Yet, as Justice Gonzalez saw it, defendants’ proof was decidedly underwhelming (R.26a-27a). There simply was “no direct match between the plaintiffs ADR and the jury’s award for lost earnings” (R.27a). Amongst other considerations, the ADR benefits were “guaranteed for life,” however long or short that might be (R.27a). By contrast, the jury’s award for lost future income would end with the plaintiffs projected retirement “at age 63” (R.27a). The judge therefore concluded: In keeping with Oden and Johnson, this Court finds that the plaintiffs ADR pension is a benefit made available to a public servant who was injured in the line-of-duty, not a substitute for lost earnings. (R.27a). 26 The Appellate Division’s Modification, Ostensibly Premised On Defendants’ Erroneous Representation That Plaintiff Had Below “Admitted” That The ADR Payments Should Be Deducted From The Award For Future Lost Pension The Appellate Division conditionally reduced Ms. Andino’s award for pain and suffering from $23 million to $2.7 million (R.1039-1040).5 Citing the decisions in Oden, 87 NY2d 81, Johnson, 88 AD3d 321 and Gonzalez v Iocovello, 249 AD2d 143 [1st Dept 1998], aff’d 93 NY2d 539 [1999], the Appellate Division further ruled that “[t]he trial court correctly denied defendants’ motion to reduce the jury’s award for future lost earnings by her accidental disability pension and future medical expenses by the health insurance plan afforded to her as part of her disability retirement” (R.1041). Yet, without explanation, the Appellate Division then added that “[t]he jury’s award for future loss of pension benefits, however, should have been offset by the total amount that plaintiff was projected to receive under that disability pension, effectively reducing that category of damages to zero” (R.1041-1042). The latter ruling, which effectively reduced plaintiffs award by more than $2.5 million, was ostensibly prompted by the defendants’ erroneous representation, saved for a Reply Brief to which plaintiff could not respond, that the plaintiff had below admitted that such reduction was appropriate. 5 Plaintiff afterwards stipulated to accept the reduction in lieu of a new trial regarding that element of damages. 27 As has already been demonstrated, plaintiffs post-trial papers had very clearly asserted that defendants were “not entitled to collateral source reductions” as to any of plaintiffs economic damages (R.1017). Defendants did not misconstrue or misremember that factual detail in their principal Appellate Division brief. Quite the contrary, they therein admitted, as follows, that plaintiffs position in Supreme Court was that there should be no reduction as to either award for future economic loss: Appellants had argued that the accident disability payments should be deducted from the awards to plaintiff for lost earnings and loss of pension benefits (994-1007). CPLR 4545. Plaintiff argued that there should be no reduction (1009-17). In a decision issued after the collateral source hearing, the Supreme Court agreed with plaintiff (23a-28a). Judgment was entered and appellants now appeal (4a-17a). Defts. App. Div. Br. at 36, emphasis added. It would appear, however, that defendants hit upon a new strategy at some point between the filing of their principal and reply briefs in the Appellate Division. One reason for plaintiffs opposition to deduction of the ADR benefits was that the more generous ADR benefits instituted in 1940 were intended to reward the injured officer for his or her sacrifice (R.1012-1013). See pages 37 to 39, below. Plaintiff urged that it was inappropriate to effectively reroute her reward to the tortfeasors who disabled her (R.1012-1013). 28 Defendants’ new strategy was to take plaintiffs recognition of the historical fact that ADR benefits supplanted ODR benefits for line-of-duty injuries completely out of context and to falsely report that plaintiff had below admitted that her ADR benefits should be deducted from her award for loss of future pension. Thus, having previously and correctly asserted in their main brief that plaintiff had below opposed the set-off (Defts. App. Div. Br. at 36), defendants now proclaimed in their Appellate Division Reply Brief that “in the Supreme Court plaintiff admitted that the accident disability pension benefits correspond to lost service pension benefits” and that “the only question on this appeal is whether they should be set off against lost income as well.” Defts. App. Div. Rep. Br. at 10-11, emphasis added. In fact, the representation was doubly false inasmuch as, (a) plaintiff had clearly opposed the reduction in the lower court (R.109, 1014), and, (b) the defendants’ position below had been that there should be a set-off of only $161,792 against the award of $2,490,829 for lost future pension, not that the award should be reduced to nothing at all (R.109, 1002). Nonetheless, the representation had its apparently intended effect; the Appellate Division reduced plaintiffs award for lost future pension to literally nothing at all. Ironically, in ruling that defendants were not legally entitled to any set-off as to the award for lost future income but in then granting defendants a set-off of 29 $2,490,829 (the entire award for lost pension), the Appellate Division granted defendants virtually the same relief they would have received had they “won” the issue concerning lost future income. According to defendants’ economist, Ms. Andino would receive a total of $2,554,304 in ADR benefits over the remainder of her statistical life expectancy (R.106). As matters now stand, all but $161,792 of that $2,554,304 in projected payments was used to reduce plaintiffs award for lost future benefits from the pre¬ reduction sum of $2,490,000 to the post-reduction sum of $0. So, unless defendants’ new position is that the ADR benefits should be deducted more than once, it is difficult to imagine what more defendants could possibly want. 30 ARGUMENT POINT I THE TRIAL COURT WAS CORRECT IN RULING THAT THE DEFENDANTS FAILED TO ESTABLISH THE PREREQUISITE “CLEAR AND CONVINCING” ENTITLEMENT TO A COLLATERAL SOURCE SET-OFF. Plaintiff submits that the trial court’s ruling that there should be no collateral source reductions was correct for the following reasons: (1) this Court ruled in Oden, 87 NY2d at 87, that an alleged collateral source payment should not be deducted from the plaintiffs recovery unless the party seeking such reduction establishes a “direct correspondence” between the “item of loss” and the “collateral disbursement,” and, unless that party does so by “clear and convincing evidence”; (2) there is no “direct correspondence” in the case at bar between the plaintiffs ADR benefits and the items of loss that defendants sought to reduce; and, (3) equally important, review of the history of the particular ADR benefits that are here in issue shows that the added benefits were intended as a reward for the disabled police officer’s past services, a reward which would effectively be passed from the police officer- victim to the defendant-tortfeasor if defendants had their way. 31 A. Settled Law Requires Any Defendant Who Seeks A Collateral Source Reduction To Establish By “Clear And Convincing Evidence” That There Is A “Direct Correspondence” Between An “Item Of Loss” In The Case And The “Collateral Reimbursement” Which The Defendant Seeks To Deduct From The Plaintiff’s Award. “At common law, the ‘collateral source rule’ precluded the reduction of a personal injury award by the amount of compensation a plaintiff received from a source other than the tortfeasor.” Iazzetti v City of New York, 94 NY2d 183, 187 [1999]. The premise was “that a negligent defendant should not, in fairness, be permitted to reduce its liability by the proceeds of insurance or some other source to which that defendant has not contributed.” Oden, 87 NY2d at 85. The rule against consideration of collateral sources, which was “part of New York’s common-law tort jurisprudence for well over a century,” was “designed to ensure that tortfeasors pay for all damages caused by their tortious conduct.” Inchaustegui v 666 5th Ave. Ltd. Partnership, 96 NY2d 111, 115 [2001]. It was against this backdrop that, starting in 1975, the Legislature enacted a series of amendments that allowed and later required deduction of certain collateral source payments, first only in medical malpractice actions, then in personal injury actions against public employers, and, finally, in 1986, in all personal injury, wrongful death, and property damage actions. Iazzetti, 94 NY2d at 187-188 (discussing the series of amendments from 1975 to 1986). 32 CPLR § 4545[a] now applies “[i]n any action brought to recover damages for personal injury, injury to property or wrongful death, where the plaintiff seeks to recover for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss.”6 As pertinent here, the statute provides, ... 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, except for life insurance and those payments as to which there is a statutory right of reimbursement ... 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 ... The lead case as to the above-quoted statutory standard is this Court’s 1995 ruling in Oden, 87 NY2d 81. Oden was a case in which the plaintiff-iron worker was disabled as a result of the subject workplace accident. The defendant therein argued that the statute dictated that the plaintiffs ADR benefits be deducted from his award for lost future income. Plaintiff urged that there should be no deduction 6 As is correctly noted by defendants, this action is actually governed by the pre-2009 version of the statute and therefore by “old” and since repealed CPLR 4545[c] rather than “new” CPLR 4545[a]. However, “old” subdivision [c] is identical to “new” subdivision [a] in all pertinent respects. 33 absent a direct correspondence between the payments and the tort award, and that there was no such correspondence between the ADR payments and the tort award. The Oden Court ruled that “a close analysis of the statutory text” supported plaintiffs construction of the statute (87 NY2d at 87). Because the statute “first refers to actions to recover for enumerated and other economic losses and then authorizes the trial court to consider that any ‘such’ losses were or will be replaced from a collateral source,” the use of the term “such,” the Oden Court reasoned, serves “as a grammatical echo for its immediate antecedent” and means “that a direct correspondence between the item of loss and the type of collateral reimbursement must exist before the required statutory offset may be made [emphasis added]” (Id.). Such construction was further dictated by the circumstance that CPLR § 4545 was “a statute enacted in derogation of the common law and, as such, is to be strictly construed” (87 NY2d at 86). The Oden Court added that the “broader rule” proposed by the defendant therein — a rule “which would mandate subtraction of all collateral source payments arising from the incident regardless of whether they duplicate an awarded item of pecuniary loss” — would “overcompensate and produce results beyond those necessary to remedy the ‘evil’ at which the legislation was aimed” (87 NY2d at 88, italicized emphasis in original). Such a rule would also “confer an undeserved windfall on tort defendants and their insurers by permitting them to 34 obtain a credit for collateral source payments that do not correspond to the items of economic loss that they are being called upon to reimburse” (id.). As for the case then before it, the Oden Court ruled that the plaintiffs ADR benefits were “paid in lieu of ordinary pension benefits” and did not “necessarily correspond to any future earning capacity plaintiff might have had” (87 NY2d at 88). In so concluding, the Court observed that “plaintiff would have been free to earn income from his labor in other capacities without loss of his disability retirement pension benefits” and that it “[t]hus” could not “be said that the disability pension benefits plaintiff expects to receive are duplicative of the award he received for lost future earnings” (87 NY2d at 88-89). In the case at bar, defendants argued in the Appellate Division that the Oden Court did not literally mean that there had to be “a direct correspondence” between the item of loss and the collateral source and that the courts that construed that language literally did so “in an erroneously narrow manner.” Defts. App. Div. Br. at 62. Yet, this Court has repeatedly said that the standard is, indeed, whether there is “a direct correspondence” between the jury award and the collateral source. Fisher v Qualico Contr. Corp., 98 NY2d 534, 538 [2002] (“CPLR 4545(c) does not direct the setoff of collateral source payments against all damages awards, as the Legislature intended only to eliminate windfalls and duplicative recoveries. To assure that plaintiffs are fully compensated— but not overcompensated— a ‘direct 35 correspondence between the item of loss and the type of collateral reimbursement must exist before the required statutory offset may be made [quoting Oden, 87 NY2d at 87]”’); Bryant v New York City Health and Hosps. Corp., 93 NY2d 592 [1999] (since CPLR § 4545 “was intended to eliminate double recoveries, not provide defendants and their insurers with an ‘undeserved windfall,” there must be “a direct correspondence between the item of loss and the type of collateral reimbursement ... before the required statutory setoff may be made”). So has the Appellate Division. Fisher v Mascardo, 94 AD3d 524, 524 [1st Dept 2012]; Stolowski v 234 E. 178th St. LLC, 89 AD3d 549, 549 [1st Dept 2011]; ShuevRed Cr. Cent. School Dist., 266 AD2d 899, 900 [4th Dept 1999]. By contrast, there is no case authority for defendants’ lower court claims that it is sufficient that the payments “reasonably correspond” to an element of damages (R.947) or that there be “a rational correspondence” between the item of loss and the collateral source (Defts. App. Div. Br. at 63). The issue, then, is whether defendants here established the requisite “direct correspondence” between the plaintiffs ADR payments and an “item of loss.” For the reasons detailed below, that question should be answered in the negative. 36 B. Historically, ADR Benefits Displaced ODR Benefits In Those Circumstances In Which The Disabled Police Officer Was Deemed To Warrant Enhanced Benefits As A Reward For His Or Her Past Services. The question under Oden is whether there is a “direct correspondence” between the jury awards which defendants seek to reduce and the ADR benefits defendants seek to use towards that end. In order to answer that question, it is necessary to address why ADR benefits exist in the first place and what, exactly, they are supposed to do. Settled law holds that, absent indication to the contrary, pension rights are legally presumed to provide compensation for services that were previously performed, the assumption being that “full and adequate compensation was not received at the time of the rendition of such services.” Giannettino v McGoldrick, 295 NY 208, 212 [1946]; Gordon v Monaghan, 309 NY 336, 342 [1955]. Here, far from providing indication to the contrary, the history of the particular ADR benefits that are here in issue confirms that they were created to provide payment for services previously rendered. Up until 1940, there was no such thing as accident disability retirement payments for injured New York City police officers or firefighters. “Prior to that time, line-of-duty retirement benefits were payable solely upon a determination that the disability was employment related”; there was no additional requirement that the disability have been sustained as the result of an “accident.” Lichtenstein v 37 Bd. of Trustees of Police Pension Fund of Police Dept, of City of New York, Art. II, 57 NY2d 1010, 1012 [1982]; Uniformed Firefighters Ass'n, Local 94, IAFF, AFL- CIO v Beekman, 52 NY2d 463, 467ÿ168 [1981]. The pension then paid, regardless of how the line-of-duty injury arose, was “not less than half’ of the retiree’s full salary. Former NYC Ad. Code § 1318-4.0; Pierne v Valentine, 291 NY 333, 340 [1943]. When three-quarters accidental disability benefits were created, they were intended to displace ordinary disability payments in those instances in which the disability arose from a qualifying “accident.” Why, one might ask, would police officers disabled in the line of duty be provided greater compensation than police officers who were disabled in some other manner? Clearly, the difference cannot be that the economic loss is greater in one instance than the other. Nor can the difference have anything to do with the services the disabled police officer would later provide since, in each instance, the disabled officer would not be providing any services. The difference, the only difference, relates to the services the disabled officer previously provided. The greater payments were intended to be a reward paid in gratitude for the officer’s sacrifice. Further, while the City of New York below filed an amicus brief for the proposition that the plaintiffs ADR benefits should be deemed a collateral source under CPLR § 4545, the City admitted in 38 Walsh v Scoppetta, 18 NY3d 850 [2011] that the higher ADR payments are a reward paid in gratitude for past services. In the Matter of the Application of Robert WALSH, Brief for Petitioner-Appellant, 2011 WL 7452111 at 8 (“[t]he rationale for accidental disability and accidental death benefits as opposed to ordinary benefits is that the public owes a greater debt of gratitude to those public servants who suffer death or disabling injuries as a result of performing the duties for which they were employed”).7 This underscores the central irony of the case. If defendants succeeded in obtaining a dollar for dollar set-off for every dollar plaintiff would receive over the course of her lifetime in ADR benefits, the result would be that payments made in recognition as a “debt of gratitude” to a person who sacrificed his or her well-being for the public good would instead accrue to defendants for their “services” in, (a) driving a truck into the side of a police car, and, (b) then attempting, unsuccessfully, to blame the entire incident on the driver of the police car. 7 Walsh was a case in which the petitioner-firefighter was injured during an altercation with another firefighter, when petitioner was struck by a chair. The City, which was there attempting to avoid responsibility for ADR benefits, successfully argued that ADR benefits were paid as a reward for past services and that petitioner did not deserve any such reward for the conduct there in issue. 39 C. There Was No “Direct Correspondence” Between The Items Of Loss And The ADR Benefits Which Defendants Sought To Deduct From The Plaintiffs Recovery. Even aside from the fact that the ADR here in issue are paid in gratitude for past services, it remains that the ADR payments materially differ in several significant respects from the items of loss defendants sought to reduce. 1. The Award for Loss of Future Earnings Defendants contend, inter alia, that the ADR payments directly correspond to the award for lost future earnings. Yet, the reality is that two sets of payments do not correspond in the time periods of the respective payments, the amounts of the respective payments, the caveats or conditions under which the payments are made, or the benefits, if any, paid to Ms. Andino’s children. (a) Different Payment Periods The award for lost future earnings will be paid over a period of 19.24 years (R.77-78, 1008). Should Ms. Andino die before the end of the 19.24-year payment term, the remaining payments would either “be paid to persons to whom [she] owed a duty of support” or, if no such persons existed, would instead “be considered part of the [her] estate.” CPLR § 5045[b]. In either case, the payments would still be made. Should Ms. Andino outlive the payment term, the payments 40 would still stop at that point. CPLR § 5046. The payments will thus be for 19.24 8years, no more and no less, no matter how long she may live. By contrast, the ADR payments are paid for life, however long or short that might turn out to be (R.59 [Giambarrese]), except that the ADR payments could be reduced if Ms. Andino earned more than the applicable “cap” for alternative employment or went to work for the State or its subdivisions (R.68). Thus, the ADR payments could extend twenty or even thirty years longer than the jury’s award for lost future income. Or the ADR payments could end ten or fifteen years sooner than the payments for lost future income. (b) No Correspondence As To Amounts At least according to defendants’ economist, Ms. Andino’s ADR payments would exceed her total lost earnings (R.107). (c) No Correspondence As To Amounts Paid To Ms. Andino’s Children Whether Ms. Andino’s children would directly receive any of her award for lost future earnings would depend on how long Andino lives. If she were to die prior to the expiration of the payment term, they would. CPLR § 5045[b]. According to the “Summary Plan Description” adduced by defendants (R.952-993), whether the ADR member’s “beneficiary” or “beneficiaries” receive The same applies to the 17.7-year term of the payments for lost future pension. 41 anything at all depends on whether the member is prepared to receive a lesser “retirement allowance” in return for payment of death benefits. If the member chooses to receive the “maximum retirement allowance” (i.e., “the highest pension to which a member is entitled by law”), then “the pension ceases upon the member’s death, and no further pension payments may be made to any survivors” (R.982). While the member can alternatively designate a beneficiary to receive up to “100% of the member’s total monthly benefit for the rest of his or her life,” that choice comes at the expense of the member’s monthly benefits, which would then be lower as a result of that choice (R.981). Thus, the amount of disability benefits (if any) directly paid to Andino’s children bears no resemblance to the amounts (if any) that would be directly paid to them from the jury’s awards. More than that, if Andino’s award for lost future earnings were stricken (the result defendants seek), and if she were to then die five, ten, or fifteen years later, the children would be left with nothing at all since the supposedly duplicative disability payments would not continue past Andino’s death. (d) “Strings” And No “Strings” The tort awards that defendants seek to avoid would be paid to Ms. Andino (or her children) for the next 37 years without any “strings” or conditions. She 42 would not have to undergo periodic physical examinations. The payments would not be subject to any person or any body’s approval. By contrast, the Pension Board could require Ms. Andino “to undergo medical examination” each and every year as a prerequisite for continued receipt of ADR benefits. NYC Administrative Code § 13-254[a]. There would also be no guarantee that the doctors who next examined her would not disagree with the Board doctors who last examined her. Even if that possibility were dismissed as exceedingly unlikely in this particular case, Andino could still be forced to jump through as many hoops as the City directed. She would also have to live with the uncertainty and concerns that would naturally follow from the replacement of monthly payments guaranteed by a judgment with payments that were instead dependent upon the Pension Board’s continued assent. (e) “Cap” vs. No Cap During the years that Ms. Andino worked as a New York City police officer, there was no “cap” on what she was permitted to earn from outside employment. In theory, she could have earned $100 million a year as a hedge fund manager or $2,000 a week managing a bar provided that the “extra work” did not “interfere or conflict with [her] regular duties as a member of the force or [her] availability for emergency duty [etc.]” and further provided she worked no more than 20 hours a week at the outside employment. General Municipal Law § 208-d. 43 The outside income a police officer may earn while receiving ADR benefits is capped up until the police officer reaches his or her 20th year of service. NYC Administrative Code § 13-254[a]. Admittedly, the difference hardly matters in this particular case in which the plaintiff has no earning prospects anyway (R.1008b- 1009b), but the point, once again, is that the disability payments do not “directly correspond” to the jury award that defendants say should be taken away from Ms. Andino. 2. The Award for Future Loss of Pension Benefits The jury’s award for future loss of pension benefits does have an obvious analog, but not to the ADR benefits that defendants covet. The award corresponds to ordinary pension retirement (“ODR”) benefits. The ODR benefits provided to New York City police officers are “generally comprised of a taxable pension of one half of the officer’s salary” and are “payable if the officer is ‘physically or mentally incapacitated for the performance of duty and ought to be retired.’” Bitchatchi v Bd. of Trustees of New York City Police Dept. Pension Fund, 20 NY3d 268, 275 [2012], quoting Administrative Code of City of N.Y. § 13-251. “ADR benefits are more generous— a tax-free pension of three quarters of the officer’s salary— but eligibility requires an additional showing that the officer’s 44 disability is the ‘natural and proximate result of an accidental injury received in ... city-service.’” Bitchatchi, 20 NY3d at 275-276, quoting Administrative Code of City of N.Y. § 13-252. With the exception that ADR benefits are “more generous” than ODR benefits for reasons having absolutely nothing to do with any differential in earning capacity, the two forms of benefits are virtually identical. ODR benefits provided to a “member” consist of, (1) “An annuity which shall be the actuarial equivalent of his or her accumulated deductions at the time of his or her retirement,” (2) “[a] Pension which is the actuarial equivalent of the reserve-for- increased-take-home-pay to which he or she may then be entitled, if any,” and, (3) “[a] pension ... not less than (i) one-half of his or her annual eamable compensation on the date of retirement, if the years of city-service credited to him or her are ten or more, or (ii) one-third of his or her annual eamable compensation on the date of retirement, if the years of city-service credited to him or her are less than ten.” Administrative Code of the City of N.Y., § 13-257, emphasis added. ADR benefits provided to a “member” similarly consist of, (1) “[a]n annuity, which shall be the actuarial equivalent of his or her accumulated deductions at the time of his or her retirement,” (2) “[a] pension which is the actuarial equivalent of the reserve-for-increased-take-home-pay to which he or she may then be entitled, if any,” and, (3) “[a] pension, of three-quarters of his or her annual eamable 45 compensation on the date of retirement.” Administrative Code of the City of N.Y., § 13-258, emphasis added. In each instance, the payments are subject to the police officer jumping through the same hoops. In fact, Administrative Code § 13-254, which details the “safeguards on disability retirement,” does not differentiate ODR benefits from ADR benefits. The “safeguards” are the same. In each instance, payment begins with date of disability and ends with death or end of disability, irrespective of whether that turns out to be double the officer’s life expectancy or just a small fraction of the officer’s life expectancy. For these reasons, even assuming that one could reasonably construe CPLR § 4545 to dictate that the injured plaintiffs ODR benefits be deducted from a tort award that was intended to compensate the plaintiff for loss of pension benefits, it remains that ADR benefits include a premium that goes above and beyond the contractual right reflected in the jury’s award, a premium that was here intended to reward Niurka Andino for her sacrifice. D. The Weight Of Precedent Holds That A Police Officer’s ADR Benefits Do Not Directly Correspond To A Tort Award Of Lost Future Income. As has been shown, the ADR payments that are here in issue differ in material ways from each of the items of loss defendants seek to reduce. It remains to consider how courts have thus far ruled on the question of whether a disabled 46 police officer’s ADR benefits constitute collateral source payments for purposes of CPLR § 4545. As has been noted, this Court’s ruling in Oden, 87 NY2d 81 concerned a disabled ironworker, not a disabled police officer. Defendants maintain that the Oden Court’s ruling that the ADR benefits therein should not be deducted from the ironworker’s recovery rested on the fact that “plaintiffs disability pension permitted him, despite his retirement as an ironworker, to earn income in another capacity.” Defts. Br. at 16. Defendants further argue that this case should be decided differently because it purportedly involves the “converse” situation in which the disabled employee’s benefits could “be reduced, potentially to zero, if the officer is able to engage in gainful employment.” Id. Defendants additionally represent that “[o]ther than in the present case, the Appellate Divisions have addressed C.P.L.R. 4545 in the context of personal injury awards to New York City employees three times” (id. at 11), that the Appellate Division ruled against the plaintiff in two of those cases (id. at 11-13), and that the only decision to rule differently was a“sui generis” ruling in which “the defendant had failed even to identify the statutes or Administrative Code provisions applicable to the case” (id. at 13). Yet, as plaintiff now shows, each of those representations is erroneous or misleading. The so-called limitation on outside employment that purportedly 47 renders this case “the converse” of Oden was a limitation that was more theoretical than real and would last for only three of the 34 years for which defendants sought set-offs. Moreover, the Appellate Division addressed CPLR § 4545 “in the context of personal injury awards to New York City employees” on four prior occasions and ruled in the plaintiffs favor in all three of the cases (including the case at bar) that specifically involved the ADR benefits paid to New York City police officers. 1. The Defendants’ Ultimately Unconvincing Efforts To Distinguish Oden Defendants distinguish Oden on the ground that this Court there stressed that “notwithstanding his retirement as an ironworker” the plaintiff therein “would have been free to earn income for his labor in other capacities without loss of his disability retirement pension benefits” and that it “[t]hus” could not “be said that the disability pension benefits plaintiff expects to receive are duplicative of the award he received for lost future earnings” (87 NY2d at 88-89). Yet, with one caveat, that is true here as well. The caveat, according to defendants’ own witness, is that the amount Ms. Andino could earn from outside employment without any reduction of her ADR benefits was capped at approximately $68,000 per year up until her 20th year of employment, i.e., the date that she could have retired had she wished to do so (R.67-68). Of course, the limitation was more theoretical than real since plaintiff 48 did not and could not work at all, let alone at some employment that would pay her more than $68,000 a year (R.1008b-1009b). Even that limitation would cease, again according to defendants’ own witness, when Andino reached the 20th year anniversary of her hiring. At that point, there would be no limitation at all so long as the outside employment was not with the State of New York or one of its subdivisions (R.68). Here, all but a few of the years of the period for which defendants sought set-offs fell after the cap ceased to exist. According to defendants’ economist, the ADR payments which he and his hirers tried to count against the award for lost future income ran from the date of verdict in 2013 to the end of the plaintiffs statistical life expectancy in 2050 (i.e., 37 years from trial) (R.103-108). That was how they came up with a whopping $2,554,304 collateral source set-off (R.103- 104). Yet, the point at which the $68,000 annual cap on outside earnings ceased to exist would be reached, according to defense witness Giambarrese, on July 18, 2016 (R.68-69). That was when Ms. Andino would have entered her 20th year of service (R.68-69). Thus, when defendants argue that the $68,000 cap on Ms. Andino’s outside earnings renders this case the “converse” of the situation in issue, they are effectively attempting to parlay a limitation that would have lasted only three years and was meaningful in the first place only to those disabled police officers who 49 could earn more than $68,000 a year into grounds for the reduction of decades of ADR benefits. In this context, while Appellate Division rulings are obviously not binding on this Court, it is hardly surprising that this was the third time the Appellate Division had to specifically consider whether a police officer’s ADR benefits constituted a collateral source and all three rulings were in the plaintiffs favor. 2. The Three Appellate Division Rulings That Actually Involved Disabled New York Police Officers, All Rendered In The Plaintiffs’ Favor The Appellate Division has on four prior occasions addressed whether a disabled City of New York employee’s ADR benefits constituted a collateral source for the purpose of reducing the employee’s tort recovery for lost future income. Two of those cases involved disabled police officers, one involved a disabled sanitation worker, and one involved a disabled firefighter. The first decision of the four came in Gonzalez, 249 AD2d 143 affd 93 NY2d 539 [1999]. Gonzalez was cited in both of the rulings below (R.1041), but is not cited in the defendants’ brief to this Court. In Gonzalez, the defendant City of New York contended that the plaintiff police officer’s ADR benefits should be deducted from her tort awards for past and future lost earnings. The trial court denied the motion and the Appellate Division, citing this Court’s ruling in Oden, held that the ruling was correct “since the City 50 failed to demonstrate with reasonable certainty that the accident retirement benefits at issue will replace those awards” (249 AD2d at 144). Although this Court affirmed, it did so without addressing the issue. The Appellate Division’s next ruling on an ADR collateral source issue came in Iazzetti v City of New York, 256 AD2d 140 [1st Dept 1998], rev’d on other grounds, 94 NY2d 183 [1999]. There, the plaintiff was “an employee of the New York City Department of Sanitation” who “sustained a disabling back injury” (94 NY2d at 186). The Appellate Division there approved “the IAS court’s factual findings that the jury’s awards for future lost earnings and future lost pension benefits correspond to and are replaced by plaintiffs accident disability retirement pension ...” (256 AD2d at 140). Yet, strangely, even though the same court had rendered Gonzalez, 249 AD2d 143 earlier that same year (on April 21, 1998), the court’s December 1998 memorandum ruling in Iazzetti did not distinguish or in any way acknowledge the earlier, ostensibly contrary ruling in Gonzalez. Indeed, the Court’s entire discussion of the issue was a single sentence long. The City’s victory in Iazzetti was, however, short-lived as this Court reversed on other grounds. While defendants do their best to spin this Court’s ruling as supportive of their position, reporting that this Court “did not disturb” the Appellate Division’s holding that the ADR benefits constituted a collateral source (Defts. Br. at 11), this Court took care to particularly note that it was declining to 51 address that issue. This Court ruled in lazzetti that the case was governed by since repealed CPLR § 4545[b], a provision that “permit[ted] damages awards to be offset only by the collateral source reimbursement of past costs or expenses.” lazzetti, 94 NY2d at 188. Having rejected the City’s claimed entitlement to a set¬ off on that ground, the Court pointedly added, “we do not reach the issue, addressed in the order appealed from, of whether a direct correspondence exists between plaintiffs accident disability retirement pension and his future lost earnings.” Id. at 191.9 The third of the Appellate Division’s five “City ADR” rulings (including the ruling at bar), Terranova v New York City Tr. Auth., 49 AD3d 10 [2d Dept 2007], involved a disabled firefighter. Although defendants now report that the Court there ruled “the [plaintiffs] accidental disability benefits corresponded directly with the award for lost earnings” (Defts. Br. at 12), that is not quite so. The plaintiff-firefighter in Terranova was disabled after ten years of service, at a point when he had another ten years to go until receiving his pension (49 AD3d at 19). The defendant Transit Authority’s argument therein, an argument 9 Interestingly, while defendants herein eventually sought to distinguish lazzetti from Gonzalez on the ground that the defendant in lazzetti allegedly presented more and/or better proof of the alleged match between the ADR benefits and the jury’s award, the City of New York, which was the defendant in both cases, told this Court in lazzetti that “two IAS parts of the Supreme Court have ruled, on what is essentially the same proof. that the City (1) has and (2) has not met its Oden burden ...” Mario IAZZETTI and Theresa lazzetti, Plaintiffs-Appellants, v. THE CITY OF NEW YORK, Defendant- Respondent., 1999 WL 33660102, at *28. 52 which the trial court rejected but the Appellate Division credited, was not that all of the plaintiffs prospective ADR benefits should be deducted as a collateral source. Rather, the Transit Authority argued, as follows, that the first ten years of ADR benefits, the benefits that would be paid even though the plaintiff could not yet retire, were duplicative of lost income: Here, the disability payments were awarded to plaintiff for life (A161-A162). Thus, the period for which they were awarded meant that, for the first ten years, they replaced the salary Terranova would have made had he not been injured. He would not have been eligible for a pension until 2012; payments until then could only have been replacing his salary. Further, Connolly explained that the disability payments, up to the 20th anniversary of a firefighter’s starting his career with the Department, might be reduced if, in a given year, he earned more than a salary cap based upon the salary of the next grade higher than that from which he retired (A171-A172, A175). After the 20th year anniversary, however, there would be no reduction (A162). This, too, showed that the line of duty award — at least up to 2012 — replaced Terranova’s salary, notpension benefits. Edward TERRANOVA and Deborah Terranova, Plaintiffs-Respondents, v. THE NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant., 2006 WL 4960375, at *60-61, emphasis added and footnotes omitted. Furthermore, in crediting the Transit Authority’s argument in Terranova, the Second Department specifically cited the fact that “plaintiff would not have been 53 entitled to any payments from his pension until he had 20 years of service, 10 years thereafter” (49 AD3d at 19). Thus, if correctly decided, Terranova would at most support reduction of the approximately three years of ADR benefits that Ms. Andino would receive before her 20-year milestone. See pages 49 to 50, infra. That aside, there remains the question of whether the case was correctly decided. The Terranova Court never considered whether the ADR benefits displaced ODR benefits rather than lost income and did not distinguish or acknowledge the ostensibly contrary ruling in Gonzalez, 249 AD2d 143 The next and most recent collateral source ruling (apart from that at bar) concerning City-paid ADR benefits was Johnson, 88 AD3d 321. In Johnson, as here and as in Gonzalez, the plaintiff was a New York City police officer who had been retired on ADR benefits by virtue of the subject injuries. The issue in Johnson was identical to the issue here: whether the trial court had erred in “finding that defendant did not satisfy its burden of showing that the disability pension replaced the loss of earnings award” (Johnson, 88 AD3d at 327). In lieu of calling Ms. Giambarrese (who was then still an intern [R.19b]) as its witness, the Transit Authority there called Police Sergeant Patrick Boughton, a man who had “helped administer the New York City Police Pension Fund for 16 54 years.” Ophelia JOHNSON, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant., 2010 WL 8919335, at *9. On appeal in Johnson, the defendant Transit Authority made the same arguments it makes here, citing the same kind of proof. The Transit Authority there urged: (1) Sgt. Boughton’s testimony purportedly “made it clear that it [the ADR benefits] was to replace lost wages” (Ophelia JOHNSON, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant., 2010 WL 8919333, at *14-15); (2) it was purportedly “impossible to see how a jury award for ‘future loss of earnings’ ... was for anything other than a loss of earnings” (Id. at 33); (3) “[t]he evidence below” allegedly proved “that the disability pension plaintiff received was intended to replace her lost earnings” (Id. at 38); and, (4) plaintiffs contention that the “defendant did not sufficiently show the purpose of the disability pension” was “disingenuous, to say the least” (Ophelia JOHNSON, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellant., 2010 WL 8919335, at *8). 55 The Johnson Court considered but rejected those arguments. In particular, the Court concluded that Iazzetti had been wrongly decided to the extent that the “broad proposition” that ADR benefits always offset lost earnings was “inconsistent” with the “controlling” precedent of Oden (88 AD3d at 327-329). The Appellate Division here reached the same conclusion for essentially the same reasons. In all, that makes five Appellate Division decisions that concerned application of CPLR § 4545 to City-paid ADR benefits. Three of those cases — Gonzalez, Johnson and the case at bar — involved disabled New York City police officers. The ruling in all three cases was that the plaintiffs ADR payments could not be credited against the plaintiffs award for lost income. The Second Department went the other way in Terranova, involving a disabled firefighter, but only with respect to the years before the plaintiffs pension would have vested. The First Department went the other way in Iazzetti, involving a disabled sanitation worker, but did so without considering its prior ruling in Gonzalez and has since disowned the ruling. 3. The Weight Of Authority While it of course remains that none of the Appellate Division rulings is binding on this Court, it is thus apparent that the weight of the Appellate Division authority holds that a police officer’s ADR benefits should not be deemed 56 duplicative of lost income. Just as significantly, with the exception of the First Department’s since disavowed ruling in Iazzetti, the only appellate authority that in any way supports defendants’ position, the ruling in Terranova, would merely permit deduction of the approximately three years of ADR benefits that would be paid before Ms. Andino reached her 20th year of service, not of the decades of ADR payments defendants sought to deduct. Most important of all, there is this Court’s ruling in Oden, 87 NY2d 81. Yes, the plaintiff therein was an ironworker rather than a New York City police officer. Yes, this Court there particularly relied upon the fact that the plaintiff “would have been free to earn income from his labor in other capacities without loss of his disability retirement pension benefits.” Oden, 87 NY2d at 88-89. However, given that plaintiff herein was free to earn outside income without loss of ADR benefits up to the realistically unobtainable cap of approximately $68,000 (R.68-69), and given that the cap pertained only to the first three of the approximately 37 years of payments that defendants sought to relieve Ms. Andino, plaintiff respectfully submits that the trial court’s ruling herein was consistent both with Oden and the weight of appellate authority. 57 POINT II AT THE VERY LEAST, THE REDUCTIONS, IF ANY, SHOULD BE LIMITED TO THOSE PORTIONS OF THE ADR BENEFITS THAT ARGUABLY CORRESPOND TO THE AWARDS FOR LOST FUTURE INCOME AND FOR FUTURE LOSS OF PENSION. Assuming, arguendo, that CPLR § 4545 permits or dictates that some portion of the plaintiffs ADR benefits should be deducted as a collateral source, it remains that the mathematical ploy that defendants used to wipe out the plaintiffs entire award for lost future earnings is indefensible. Similarly, while the same defendants who asked at trial only that the award for lost future pension be reduced from $2,490,829 to $2,329,027 (R.107, 1002) now applauds the appellate ruling that struck the award in its entirety, that result cannot be defended. In each instance, there is simply no arguable justification for the enormity of the set-off that the defendants initially sought or ultimately received. A. The Set-Off Defendants Requested With Respect To Ms. Andino’s Award For Lost Future Earnings Was Mathematically Indefensible. When does 100% minus 75% leave less than 0%? The answer: in this case This was the indefensibleaccording to defendants and their economist. assumption which underlay defendants’ entire argument for reduction of the award for Lost Future Earnings. 58 The jury, which apparently rounded up from Ms. Kucsma’s projection of $2,392,512 in lost future earnings (R.724b, 640.5), awarded Ms. Andino $2,400,000 for that element of loss (R.1452b-1454b). The parties thereafter stipulated to reduce the award to $2,392,512 (R.77-78, 1008). Kucsma’s projection was premised on the assumption that, but for the subject accident, Andino would have continued with the NYPD to age 63.93, her statistical worklife expectancy, without any further promotions (R.697b). Except for the adjustments that have already been noted (e.g., reduction of the employment-related expenses that Ms. Andino would no longer incur), Kucsma’s projection was supposed to represent 100% of what Ms. Andino would have earned but for the accident defendants caused. See pages 16 to 18, above. By contrast, the ADR benefits were, according to defense witness Nicole Giambarrese, supposed to compensate plaintiff for only 75% of what she would have earned but for the accident (R.29), which was admittedly a better deal than the 50% paid to police officers who instead received ODR benefits. Yet, according to defendants and their economist, when one deducted the three-quarters ADR benefits from the 100% projection, the result was that plaintiff was left with nothing at all (R.107). 100% minus 75% here equaled nothing. More precisely, the reduction allegedly left plaintiff with less than nothing at all. Andino’s ADR benefits purportedly exceeded what she would have earned as a 59 police officer, with the result that Andino allegedly owed defendants $161,792 as payment for disabling her (R.107). Justice Gonzalez’s immediate reaction to the testimony in issue was that there was “something wrong here” (R.107). She was right. There was. What defendants’ economist had done was to deduct 37 years of ADR benefits, the total amount of ADR benefits that he projected Ms. Andino would receive over the rest of her lifetime, from the amount of income that Ms. Andino was projected to earn over the 19.24 year period between the time of trial and the end of her statistical worklife expectancy (R.103-104). For the reasons stated in Point I of this brief, plaintiff respectfully submits that none of plaintiffs ADR benefits should have been deducted from her award for lost earnings. Assuming, arguendo, that assertion is incorrect, any reduction should have been limited, per the reasoning in Oden, to the approximately three years of ADR benefits that Ms. Andino would receive before she reached her 20th year of service. Put differently, the reduction should have been limited to the time period in which, (a) Andino could not have received an ordinary pension, and, (b) the amount of outside income she could earn without diminution of her ADR benefits was capped. See pages 49 to 50, above. Indeed, even defendants’ ally, the City of New York, below urged that ADR benefits “function as a substitute for lost earnings until such time as the officer would have been eligible to retire with a 60 service pension [emphasis added]” and that they “function as a substitute for lost service pension benefits after such time.” App. Div. Amicus Br. for City of New York at 2-3. Finally, even if one were to simply ignore the distinction between ADR benefits paid up until year 20 and ADR benefits paid after that point, there would still be no mathematical justification for the deduction of a lifetime of ADR benefits from an award that represents 19.25 years of lost earnings. Contrary to what defendants urged below, 100% minus 75% does not equal 0%. B. The Set-Off Defendants Ultimately Received With Respect To Plaintiffs Award For Loss Of Future Pension — Leaving Plaintiff With No Award At All — Was Also Indefensible. At trial, defendants asked that plaintiffs award for loss of future pension be reduced from $2,490,829 to $2,329,027 (R.1002). The Appellate Division instead reduced it to $0, a ruling defendants now say was correct. For the reasons stated in Point I of this brief, plaintiff submits that there is no “direct correspondence” between the plaintiffs’ ADR payment and her award for lost future pension and, accordingly, that there should be no collateral source reduction of that element of loss. Assuming, arguendo, that some collateral source reduction is warranted, plaintiff respectfully submits, 61 (1) Defendants should not be gifted with a reward that was intended for plaintiffs past services and any reduction should therefore be limited to the “ordinary” part of plaintiffs pension (i.e., to the approximately two-thirds of her current ADR payments that she would receive if her disability had not been sustained in the line of duty), and, (2) Any reduction should also be limited to the same time span (here, post-statistical worklife) as the award from which they are deducted. 62 CONCLUSION For the reasons stated above, the Court should modify the last sentence of the Appellate Division’s order, where the Appellate Division ruled that “[t]he jury’s award for future loss of pension benefits ... should have been offset by the total amount that plaintiff was projected to receive under that disability pension [her ADR benefits], effectively reducing that category of damages to zero.” Dated: New York, New York September 13, 2017 Respectfully submitted, SULLIVAN PAPAIN BLOCK McGRATH & CANNAVO P.C. Appellate Counsel for Plaintiff-Respondent- AppellantMjarka Andino By: 7Brian I7Sh< 120 Broadway, 18th Floor New York, New York 10271 (212) 732-9000 bshoot@triallawl .com DANSKER & ASPROMONTE ASSOCIATES Attorneys For Plaintiff-Respondent-Appellant Niurka Andino 30 Vesey Street New York, New York 10007 (212) 732-2929 Of Counsel Brian J. Shoot Paul Dansker 63 CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR § 500.13(c) that the foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of the statement of the status of related litigation; the corporate disclosure statement; the table of contents, the table of cases and authorities and the statement of questions presented required by subsection (a) of this section; and any addendum containing material required by § 500.1(h) is 13,695. Dated: New York, New York September 13, 2017 Respectfully submitted, SULLIVAN PAPAIN BLOCK MCGRATH & CANNAVO By: ~7 Brian J. Shoot .x" 120 Broadway New York, New York 10271 (212)732-9000