Niurka Andino, Respondent-Appellant,v.Ronald Mills, et al., Appellants-Respondents. (And a Third-Party Action.)BriefN.Y.April 24, 2018To be Argued by: TIMOTHY J. O’SHAUGHNESSY (Time Requested: 30 Minutes) Court of Appeals of the State of New York O NIURKA ANDINO, Respondent-Appellant, – against – RONALD MILLS and THE NEW YORK CITY TRANSIT AUTHORITY, Appellants-Respondents. (See inside cover for continuation of caption) REPLY BRIEF FOR APPELLANTS-RESPONDENTS LAWRENCE HEISLER, ESQ. Executive Assistant General Counsel Attorney for Appellants-Respondents 130 Livingston Street Brooklyn, New York 11201 (718) 694-3852 timothy.o’shaughnessy@nyct.com Of Counsel: Dated: October 24, 2017 TIMOTHY J. O’SHAUGHNESSY Bronx County Clerk’s Index No.: 26798/2004 APPELLATE INNOVATIONS (914) 948-2240 11422 Court of Appeals No. APL-2017-00067 _____________________________ RONALD MILLS and THE NEW YORK CITY TRANSIT AUTHORITY, Third-Party Plaintiffs, – against – NEW YORK CITY POLICE DEPARTMENT and RAFAEL VILLEGAS, Third-Party Defendants. _____________________________ i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT POINT I PLAINTIFF CANNOT DENY THAT SHE ADMITTED THAT ACCIDENT DISABILITY RETIREMENT BENEFITS ARE AWARDED IN LIEU OF ORDINARY SERVICE RETIREMENT BENEFITS ............................................................. 2 POINT II EXACT CORRESPONDENCE BETWEEN THE ITEM OF DAMAGE AND COLLATERAL SOURCE BENEFITS IS NOT REQUIRED .............................................................................................. 3 CONCLUSION .......................................................................................................... 5 ii TABLE OF AUTHORITIES Page Case: Oden v. Chemung County Industrial Development Agency, 87 N.Y.2d 81 (1995) ....................................................................................... 2, 3 Rule: C.P.L.R. 4545 ......................................................................................................... 2, 3 - 1 - COURT OF APPEALS STATE OF NEW YORK ______________________________________________ NIURKA ANDINO, Respondent-Appellant, - against - RONALD MILLS and NEW YORK CITY TRANSIT AUTHORITY, Appellants-Respondents. _ ___________________________________________ RONALD MILLS and NEW YORK CITY TRANSIT AUTHORITY, Third-Party Plaintiff, - against - NEW YORK CITY POLICE DEPARTMENT and RAFAEL VILLEGAS, Third-Party Defendants. _ ___________________________________________ REPLY BRIEF FOR APPELLANTS- RESPONDENTS ______________________ _______________________ PRELIMINARY STATEMENT Appellants-Respondents (“Transit”) respectfully submits this reply brief in further support of its appeal from the amended judgment and specifically in - 2 - response to the Brief for Respondent-Appellant, dated September 18, 2017 (“Pltf. Br.”).1 POINT I PLAINTIFF CANNOT DENY THAT SHE ADMITTED THAT ACCIDENT DISABILITY RETIREMENT BENEFITS ARE AWARDED IN LIEU OF ORDINARY SERVICE RETIREMENT BENEFITS. Plaintiff cannot deny that she stated in the Supreme Court, “[T]he evidence shows that the [accident disability retirement benefits] at issue herein [are] in lieu of ordinary pension benefits to which plaintiff would have otherwise been entitled” (1013) (quotation marks and citation omitted). Cf. Oden v. Chemung County Industrial Development Agency, 87 N.Y.2d 81, 88 (1995) (accident disability retirement benefits were paid “in lieu of ordinary pension benefits”). Plaintiff merely points to other places in her submissions where she repeated the boilerplate assertion that Transit allegedly was entitled to nothing under C.P.L.R. 4545. But when she got into the specifics of the arguments, she properly admitted that accident disability retirement benefits have a direct correspondence with the category of damages of lost service retirement benefits. 1 Numbers in parentheses refer to pages in the Record on Appeal. - 3 - POINT II EXACT CORRESPONDENCE BETWEEN THE ITEM OF DAMAGE AND COLLATERAL SOURCE BENEFITS IS NOT REQUIRED. Oden requires “a direct correspondence between the item of loss and the type of collateral reimbursement.” 87 N.Y.2d at 87 (emphasis added). It does not require that the collateral reimbursement be the exact same number of dollars over the exact same period of time. And this Court used the phrase “direct correspondence” in rejecting the argument of the third-party defendant in Oden that all collateral reimbursements should be set off against all items of damage awarded. If C.P.L.R. 4545 and Oden required that the collateral reimbursement be the exact same number of dollars over the exact same period of time, no collateral reimbursement ever would qualify under C.P.L.R. 4545 and the Legislature would have enacted a meaningless statute. For this reason Point I(C) of plaintiff’s brief is entirely wrong. The total of accident disability retirement benefits to be received by plaintiff exceeds her lost earnings because they cover her entire life expectancy, a much longer period of time that her work-life expectance (Pltf. Br. at 58). Transit’s economist wanted to deduct only $161,792 from the award for lost future pension only because he had first deducted the accident disability retirement benefits from - 4 - her lost earnings, because lost earnings came first chronologically, leaving only $161,792 in accident disability retirement benefits to be deducted from the award for lost service pension benefits (107-08; Pltf. Br. at 23, 29). It does not aid analysis for plaintiff to argue that pensions are paid for past services (Pltf. Br. at 31). By definition all pensions and retirement benefits are paid for past services because the former employee is no longer working when the benefits are received. Nor is there any merit to plaintiff’s argument that accident disability retirement benefits actually are paid “in lieu of” ordinary disability retirement benefits and not service retirement benefits (Pltf. Br. at 44-46). The question is whether there is a direct correspondence between the item of damage and the type of collateral reimbursement, not whether the collateral reimbursement is paid “in lieu of” an item of damage. And even if that were the question, it is clear that both accident and ordinary disability retirement benefits are paid “in lieu of” service retirement benefits: when accident or ordinary disability retirement benefits are awarded, the right to service retirement benefits ceases immediately. It also is of no moment that police officers who are disabled other than by accidents in the line of duty receive ordinary disability retirement benefits, which are not as generous as accident disability retirement benefits. This plaintiff - 5 - receives accident disability retirement benefits and they are of the same “type” of remuneration as salary and service pension benefits. Accident disability retirement benefits are not paid “in lieu of” ordinary disability retirement benefits, but rather accident or ordinary disability retirement benefits are paid “in lieu of” salary and service pension benefits. CONCLUSION The amended judgment should be vacated and the matter remanded to the Supreme Court for appropriate proceedings leading to the entry of a second amended judgment in which the accident disability pension benefits received by plaintiff will be set off against her lost income as well as her lost pension benefits - 6 - and Transit should be granted such other and further relief as the Court deems proper. Dated: Brooklyn, New York October 24, 2017 Respectfully submitted, LAWRENCE HEISLER Attorney for Defendants-Appellants- Respondents by: /S/ Timothy J. O’Shaughnessy, Esq. TIMOTHY J. O’SHAUGHNESSY Of Counsel: Timothy J. O’Shaughnessy