James E. Freligh II, Appellant,v.Government Employees Insurance Company, Respondent.

Brief

N.Y.December 7, 2017

To be argued by: Derek J. Spada Time requested: 10 minutes Ml Supreme Court of tlje ££>tate of Jsteto Horfe Apellate dtbtsfton - fEtytrb department JAMES E. FRELIGH, III, Plaintiff-Respondent, -against- GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant-Appellant. RESPONDENT’S BRIEF BASCH & KEEGAN, LLP Attorneys for Plaintiff-Respondent 307 Clinton Avenue P.O. Box 4235 Kingston, New York 12402 (845) 338-8884 Ulster County Index No. 14-1447 TABLE OF CONTENTS Table of Authorities. ,i Preliminary Statement. 1 Questions Presented .2 Statement of the Case .3 Argument. 10 POINT I THERE ARE QUESTIONS OF FACT REGARDING WHETHER MR. FRELIGH’S LOST EARNINGS WERE REASONABLY PROJECTED BASED UPON THE JOB OFFER THAT WAS TENDERED AND HIS ACCEPTANCE THEREOF PRIOR TO THE AUTOMOBILE COLLISION 11 POINT II MR. FRELIGH’S LOST WAGE CLAIM WAS AMPLY VERIFIED BY APPELLANT, BOTH THROUGH DOCUMENTARY EVIDENCE AND TESTIMONY. 16 CONCLUSION. 18 3 0 TABLE OF AUTHORITIES Cases Aetna Casualty & Surety Co. v. Whitestone General Hosp., 142 Misc. 2d 67 (Sup. Ct. N.Y. County 1988) 11 Aoki v. Aoki. 27 N.Y.3d 32 (2016). 18 Bames v. Maryland Casualty Co.. 124 Misc. 2d 942 (Civil Court, Kings County 1984) 11 Burgos v. Aqueduct Realty Corp.. 92 N.Y.2d 544 (1998). 153 Cardinell v. Allstate Ins. Co.. 302 A.D.2d 772 (3d Dep’t 2003). ,11 Central Gen. Hosp. v. Chubb Group of Ins. Cos.. 90 N.Y.2d 195 (1997), 16 Contemporary Mission. Inc, v. Famous Music Com.. 557 F.2d 918 (2d Cir. 1977) 12 Costello v. Pizzeria Uno of Albany, Inc., 139 A.D.3d 1336 (3d Dep’t 2016). 15 Dermatossian v. New York City Transit Auth.. 67 N.Y.2d 219 (1986). 11 England v. Vacri Const. Corp., 24 A.D.3d 1122 (3d Dep’t 2005) 18 Entis v. Atl. Wire & Cable Corp.. 335 F.2d 759 (2d Cir. 1964). 12 Faas v. State. 249 A.D.2d 731 (3d Dep’t 1998). 15 Fair Price Med. Supply Corp. v. Travelers Indem. Co.. 10 N.Y.3d 556 (2008). 16 Ferrante v. Am. Lung Ass’n, 90 N.Y.2d 623 (1997), 18 Flvnn v. Allstate Indem. Co.. 22 Misc. 3d 1138(A) (City Ct. of Watertown, 2009) 12 Friends of Thayer Lake LLC v. Brown. 27 N.Y.3d 1039 (2016), 18 Gavle v. City of New York. 92 N.Y.2d 936 (1998). . Hirschfeld v. IC Sec.. Inc„132 A.D.2d 332 (1st Dep’t 1987). .15 12 HOSP. for Joint Diseases v. Travelers Prop. Cas. Ins. Co.. 9 N.Y.3d 312 (2007), 10, 16 i J ■) Lexington 360 Associates v. First Union National Bank of North Carolina, 234 A.D.2d 187 (IstDep’t 1996). 12 Lexington Products Limited v. B.D. Communications, Inc., 677 F.2d 251 (2nd Cir.1982), 12 LMK Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co.. 46 A.D.3d 1290 (3d Dep’t 2009). 11 Orr v. Kiamesha Concord. Inc.. 167 A.D.2d 153 (IstDep’t 1990). 12 Patricia YY v. Albany County Dept, of Social Services. 238 A.D.2d 672 (3d Dep’t 1997) 18 Presbyterian Hosp. v. Maryland Cas. Co., 90 N.Y.2d 274 (1997), 10, 11, 16 Roggio v. Nationwide Mut. Ins. Co.. 66 N.Y.2d 260 (1985), 10 Schneider v Kings Highway Hosp. Ctr„67 N.Y.2d 743 (1986). 15 Sharpe v. Allstate Ins. Co.. 14 A.D.3d 774 (3d Dep’t 2005). 14 State Farm Mut. Auto. Ins. Companies v. Brooks, 78 A.D.2d 456 (4th Dep’t 1981) 13 State Farm Mut. Auto. Ins. Co. v. Stack. 55 A.D.3d 594 (2d Dep’t 2008). 15 Viviane Etienne Med. Care. P.C. v. Country-Wide Ins. Co.. 25 N.Y.3d 498 (2015). 10, 16 Statutes N.Y. Ins. Law § 5106 10 Regulations 11 NYCRR 65.15(e). 18 11 NYCRR 65.15(0)(2)(v). 13 11 NYCRR 65-3.5(m), 17 11 NYCRR 65-3.16(b)(3). 14 ii J 1 PRELIMINARY STATEMENT This brief is respectfully submitted on behalf of Respondent, James E. Freligh, II, seeking an affirmance of the Decision and Order of Supreme Court, Ulster County (Hon. James P. Gilpatric), which denied Appellant’s summary judgment motion. (R. at 4-7). 3 I J QUESTIONS PRESENTED WHETHER SUPREME COURT CORRECTLY DENIED APPELLANT’S SUMMARY JUDGMENT MOTION BECAUSE THERE ARE TRIABLE QUESTIONS OF FACT REGARDING WHETHER APPELLANT’S FUTURE EMPLOYMENT WAS REASONABLY CALCULATED? I. YES. WHETHER APPELLANT’S LOST WAGE CLAIM WAS ADEQUATELY VERIFIED THROUGH DOCUMENTATION AND DEPOSITION TESTIMONY OF HIS EMPLOYER? II. 3 YES. 2 J STATEMENT OF THE CASE Introduction: On December 23, 2012, Mr. Freligh was injured in a motor vehicle collision. (R. at 411). Prior to the collision, Mr. Freligh had been unemployed and seeking work. (R. at 411). Shortly before the collision, he applied for a job at VW Parts, Inc., which is located in Fleischmanns, New York. (R. at 411). The company was owned by William Hrazanek. (R. at 411). On December 15, 2012, which was eight days before the accident, Mr. Freligh was offered a job by Mr. Hrazanek at VW Parts with a salary of $2,000 per week plus benefits. (R. at 411). Mr. Freligh was elated by the job offer and accepted it prior to the collision. (R. at 411). Mr. Freligh was scheduled to begin working at the beginning of January, 2013. (R. at 411). In December of 2012, VW Parts, Inc., was one of the largest dealers of Volkswagen and Audi parts in the country. (R. at 411). The company had tens of thousands of parts labeled and warehoused, as well as about 1,500 to 2,000 intact cars waiting to have parts stripped, labeled and warehoused. (R. at 411). Mr. Freligh worked at automotive parts dealerships for approximately 26 years. (R. at 411). He began working when at the age of 17 at Shokan Coach Works, which at the time was the largest dealer of used Audi parts in the world. (R. at 411). Mr. Hrazanek’s business was similar to Shokan Coach Works, except that he sold both Volkswagen parts and Audi parts. (R. at 411-12). Due to Mr. Freligh’s extensive experience with Audi and Volkswagen parts, his job 3 J ■) at VW Parts was going to consist of dismantling and warehousing of parts. (R. at 412). He has knowledge about which parts fit which vehicles and which parts are interchangeable between different vehicles. (R. at 412). This was valuable to a business such as VW Parts because Mr. Freligh’s knowledge and experience would facilitate the sale of vehicle parts. (R. at 412). Mr. Freligh was severely injured in a motor vehicle accident on December 23, 2012, and was unable to begin working due to the extensive injuries that he sustained. (R. at 412). Mr. Freligh advised Mr. Hrazanek that he was unable to work as planned due to his injuries from the motor vehicle collision. (R. at 412). Appellant emphasized that VW Parts was ultimately an unsuccessful business and was eventually sold. (R. at 412). However, Mr. Freligh believes that if he had been hired to work at this company, his expertise in Audi and Volkswagen parts would likely have helped the business to remain profitable. (R. at 412). In any event, Mr. Freligh was prevented from beginning work at VW Parts due to his injuries from the collision. (R. at 412). Moreover, he was prevented from seeking alternative work due to his injuries. (R. at 412). If Mr. Freligh began working at VW Parts 3 and the company became insolvent, he would have sought and obtained other employment. (R. at 412). However, due to his injuries from the collision, Mr. Freligh was unable to return to work in any capacity. (R. at 412). Furthermore, Mr. Hrazanek did not sell VW Parts, Inc., until 2014. (R. at 412). The company continued to sell parts up until it was sold in 2014. (R. at 412). As such, if he was not injured in the collision, Mr. Freligh would have most likely remained employed at VW 4 ■) Parts until at least 2014, which was more than one year after his anticipated start date of employment. (R. at 412). Additionally, the individual who purchased VW Parts may very well have retained Mr. Freligh as an employee at the business. (R. at 412). Mr. Freligh was acquainted with the purchaser of VW Parts prior to the December 23, 2012 collision due to his experience in automotive parts. (R. at 412). With regard to the resume that Mr. Freligh submitted to Appellant, it indicated that he was employed at Hurley Motor Sports. (R. at 412). However, that was Mr. Freligh’s last3 job prior to the accident, and he was not employed at Hurley Motor Sports for quite some time prior to the collision. (R. at 412). The resume was outdated and he had not recently updated it. (R. at 412). Mr. Freligh was self-employed in buying and selling automotive parts after leaving Hurley Motor Sports, but did not update his resume to include this information. (R. at 412). In any event, this information is rather irrelevant for the issues presented in this appeal. Appellant notes that VW Parts was being liquidated due to Hurricane Irene. (R. at 412). However, VW Parts had vehicles at three locations and many of their vehicles were not damaged. (R. at 413). Contrary to Appellant’s assertions, Mr. Freligh’s lost earnings claim is based upon a job offer that he received and accepted, and fully intended to begin at VW Parts shortly after the collision, but could not begin working due to his injuries. (R. at 413). Specifically, he was offered $2,000 per week and given a start date at the beginning of January, 2013. (R. at 411). Mr. Freligh accepted the offer prior to the collision. (R. at 411). Appellant also claims that it does not have to pay or deny Mr. Freligh’s lost wages 5 J 1 because it never received an NF-6 form from Mr. Hrazanek or anyone at VW Parts. (R. at 413). However, Mr. Hrazanek testified at a deposition that Appellant never requested an NF-6 form from him. (R. at 138-39; 413). Furthermore, Appellant also sent an investigator to meet with Mr. Hrazanek. (R. at 413). Appellant obtained whatever information it could possibly need from Mr. Hrazanek through questioning at his deposition and through documentary evidence that was submitted by VW Parts to Appellant, most of which was attached to Appellant’s motion. (R. at 413). In fact, Appellant conducted two depositions of Mr. Hrazanek. (R. at 91-153; 342-93). Finally, in the event that Mr. Freligh’s job with VW Parts did not work out, he would have sought and obtained other employment. (R. at 413). Appellant avers that Mr. Freligh’s lost wage claim is speculative. (R. at 413). However, Appellant’s allegations are premised upon speculation, meaning that Appellant is speculating that Mr. Freligh’s employment would not have worked out and that he would have never found alternative employment in the event that it did not work out. (R. at 413). Mr. Freligh’s injuries from the 12/23/12 collision continue to plague him. (R. at 413). He remains totally disabled and unable to return to work due to his injuries. (R. at 413). Deposition testimony of William Hrazanek: Mr. Hrazanek testified that he is the owner of VW Parts, which is also known as VWP, Inc. (R. at 100). VW Parts dismantled Volkswagens and Audis and then stored and sold the parts. (R. at 102-04). As a result of Hurricane Irene, some vehicles owned by VW Parts were destroyed 6 and washed downstream. (R. at 112-14). However, the inventory at one location was fully intact and not affected by the flood. (R. at 113-14). Mr. Hrazanek knew Mr. Freligh for about 15 years prior to hiring him. (R. at 130). Mr. Hrazanek wanted to hire Mr. Freligh because he “needed to expand the business and get back on track after the flood and [Mr. Freligh] was the person that [Mr. Hrazanek] felt was able to do that.” (R. at 131). At his deposition, Mr. Hrazanek was shown Mr. Freligh’s application for employment, which was filled out on December 15, 2012. (R. at 134). Mr. Freligh was supposed to start work on “the first of the year.” (R. at 134). Mr. Hrazanek wrote on the application that Mr. Freligh’s salary would be $2,000 per week. (R. at 135). Mr. Hrazanek then signed the application. (R. at 44). The salary of $2,000 per week was arrived at because Mr. Hrazanek had plans to open a repair shop. (R. at 135). Also, Mr. Freligh worked at numerous Audi dealers and attended many automotive schools. (R. at 135). Mr. Hrazanek was “basing [his company’s] future on James [Freligh] actually.” (R. at 135). Mr. Freligh was unable to begin the job because he was injured in a car accident. 3 (R. at 137). Appellant’s counsel showed Mr. Hrazanek an NF-6 form and asked if he was ever asked to complete this document. (R. at 138-39). Mr. Hrazanek did not believe that he was ever asked to complete that form. (R. at 138-39). Mr. Hrazanek was subsequently re-deposed. (R. at 342). At his second deposition, Mr. Hrazanek again confirmed that he hired Mr. Freligh to assist in opening a 7 J -) repair shop at his premises. (R. at 342). Significantly, Mr. Hrazanek explained the difference between VW Parts, Inc. and VWP, Inc., which were two companies that he owned. (R. at 380-81). VWP, Inc. was a holding company for the property where VW Parts, Inc. operated its business. (R. at 380- 81). VWP, Inc., had nothing to do with operating the company. (R. at 380-81). When Mr. Hrazanek filed bankruptcy, he filed for VWP, Inc. (R. at 380-81). There is no indication that he filed bankruptcy for VW Parts, Inc., which was the business that hired Mr. Freligh shortly before the collision. (R. at 380-81). Thus, Mr. Freligh’s employer did not file bankruptcy. The purpose of the VWP bankruptcy was to hold the mortgage holder at bay, thereby permitting Mr. Freligh’s employer, VW Parts, to continue operating. (R. at 380- 81). Deposition of Appellant’s Adjuster: Aderonke Adeshelia testified on behalf of Appellant. (R. at 61). She had no involvement whatsoever in Mr. Freligh’s claim prior to her deposition. (R. at 68-69). She only became involved in Mr. Freligh’s claim for her deposition. (R. at 69). Ms. 3 Adesheila’s testimony was not based on any firsthand knowledge, but rather was premised on a conversation with another adjuster and her review of some documents. (R. at 70; 72-78). Procedural History: The summons and complaint were filed on May 9, 2014. (R. at 24). Appellant answered on June 27, 2014. (R. at 28). Discovery has been completed. 8 J 3 Appellant submitted a summary judgment motion claiming that Mr. Freligh’s lost earnings were not “reasonably projected,” despite the fact that he received a job offer with a definitive salary and start date, and accepted the offer prior to being injured in the subject collision. Appellant overlooked the fact that there was an employment relationship established prior to the collision based upon the job offer and acceptance, but that performance of the agreement could not occur due to the injuries that Mr. Freligh sustained in the collision. Additionally, Appellant sought summary judgment based on its claim that it did not receive a completed NF-6 form from Mr. Freligh’s employer. (R. at 12-13). However, Mr. Hrazanek did not recall ever receiving any such form and Appellant did not submit evidence from anyone with firsthand knowledge of this matter that the form was actually sent to Mr. Freligh’s employer. Moreover, Appellant received ample evidence, both in the form of documentation and testimony, to verify Mr. Freligh’s employment status. (R. at 33-35; 41-60; 88-394). Supreme Court’s Decision: 3 Supreme Court recited the facts and claims made by the parties. (R. at 4-6). Thereafter, Supreme Court held that there was conflicting testimony, which raised issues of fact that could not be resolved on a summary judgment motion. (R. at 6). In reaching its decision, Supreme Court may have erred in finding the existence of conflicting testimony. In actuality, Appellant failed to submit any testimony that conflicts with Mr. Freligh’s and Mr. Hrazanek’s testimony. 9 -) Nonetheless, summary judgment was properly denied. Even considering the documentary evidence and hearsay submitted by Appellant, there are triable questions of fact based on the testimony of Mr. Freligh and Mr. Hrazanek. ARGUMENT “No-fault reform was enacted to provide prompt uncontested, first-party insurance benefits. That is part of the price paid to eliminate common-law contested lawsuits ... The tradeoff of the no-fault reform still allows carriers to contest ill-founded,3 illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices.” Viviane Etienne Med. Care. P.C. v. Country-Wide Ins. Co.. 25 N.Y.3d 498, 507 (2015) (referencing Presbyterian Hosp. v. Maryland Cas. Co.. 90 N.Y.2d 274, 285 (1997); Hosp. for Joint Diseases v. Travelers Prop. Cas. Ins. Co.. 9 N.Y.3d 312 (2007)). By failing to pay Mr. Freligh’s claim, which was made more than four years ago, Appellant has deliberately circumvented one of the primary statutory purposes of “provid[ing] no-fault claimants with opportunity for immediate redress.” N.Y. Ins. Law § 5106, note 1) (referencing Roggio v. Nationwide Mut. Ins. Co.. 66 N.Y.2d 260 (1985)); see also Hosp. for Joint Diseases. 5 A.D.3d at 442 (emphasis added). Pursuant to both the Insurance Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim. See Ins. Law § 5106(a); 11 NYCRR 65.15 (g)(3). Failure to pay benefits within the 30-day requirement renders benefits “overdue,” and all overdue payments bear interest at a rate of 2% per month. See Ins. Law § 5106(a); 11 NYCRR 65.15(h). Additionally, a claimant is entitled to recover attorney’s fees where a “valid claim or portion” was denied or overdue. See Ins. Law § 10 D 5106(a); 11 NYCRR65.15(i). Presbyterian Hosp., 90 N.Y.2d at 285. “[T]he designated interest rate is designed to inflict an economic sanction or penalty on those insurers who do not comply” with Insurance Law § 5106(a) and 11 NYCRR 65.15(h)(1). Cardinell v. Allstate Ins. Co.. 302 A.D.2d 772, 774 (3d Dep’t 2003) (referencing Dermatossian v. New York City Transit Auth.. 67 N.Y.2d 219, 224 (1986); Aetna Casualty & Surety Co. v. Whitestone General Hosp.. 142 Misc. 2d 67, 71 (Sup. Ct. N.Y. County 1988)). “Said differently, the statute and regulation ‘are punitive, with severe penalties, to encourage prompt adjustments of claims.”’ Id. (referencing Barnes v. Maryland Casualty Co., 124 Misc. 2d 942, 944 (Civil Court, Kings County 1984)); see also LMK Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co.. 46 A.D.3d 1290, 1292 (3d Dep’t 2009). Rather than promptly paying Mr. Freligh’s claim, Appellant has denied the existence of valid evidence and uncontroverted testimony, and filed a summary judgment motion and an appeal while delaying a resolution of this lost earning claim for more than four years. THERE ARE QUESTIONS OF FACT REGARDING WHETHER MR. FRELIGH’S LOST EARNINGS WERE REASONABLY PROJECTED BASED UPON THE JOB OFFER THAT WAS TENDERED AND HIS ACCEPTANCE THEREOF PRIOR TO THE AUTOMOBILE COLLISION. I. Insurance Law § 5102(2) provides that an injured party is entitled to “[l]oss of earnings from work which the person would have performed had he not been injured.” “[U]nder New York law, the calculation of damages cannot be based on “wholly li -) speculative theories” but instead must be grounded in fact to a “reasonable certainty.” Flynn v. Allstate Indem. Co.. 22 Misc. 3d 1138(A) (City Ct. of Watertown, 2009) (referencing Lexington 360 Associates v. First Union National Bank of North Carolina. 234 A.D.2d 187 (1st Dep’t 1996). “It is not necessary, however, in a breach of contract case in New York to determine damages with scientific precision to a complete certainty.” Id. (referencing Lexington Products Limited v. B.D. Communications. Inc.. 677 F.2d 251, 253 (2nd Cir.1982)). “Furthermore, under the long-standing New York rule, when the existence of damage is certain, and the only uncertainty is as to its amount, the plaintiff will not be denied recovery of substantial damages. Moreover, the burden of uncertainty as to the amount of damage is upon the wrongdoer ... “an estimate necessarily requires some improvisation, and the party who caused the loss may not insist on theoretical perfection.” Id- (referencing Contemporary Mission. Inc, v. Famous Music Corp.. 557 F.2d 918, 926 (2d Cir. 1977); Entis v. Atl. Wire & Cable Com.. 335 F.2d 759, 763 (2d Cir. 1964); Hirschfeldv. IC Sec.. Inc.. 132 A.D.2d 332, 336 (1st Dep’t 1987)). The case at bar is analogous to Orr v. Kiamesha Concord, Inc.. 167 A.D.2d 153 (1st Dep’t 1990), in which the plaintiff, “a voice-over recording artist, had auditioned, 3 won the job, was promised a standard union contract and was already scheduled for her first recording session in connection with the anglicized version of the Japanese ‘Bumboo’ cartoon series when she suffered injury at defendant’s hotel, which allegedly caused her to lose the job.” The court held that the plaintiff was “able to demonstrate the existence of a ‘stable and ready market’ for her services, the performance of which was interrupted by the injury.” Id. 12 3 -) In the case at bar, Mr. Freilgh was offered a job at VW Parts, and would have earned $2,000 per week if he had not been injured. While VW Parts was ultimately unsuccessful, Mr. Hrazanek testified that his company was basing its future on Mr. Freligh. (R. at 135). Thus, Mr. Freligh may have been able to keep the company afloat, even after portions of the business were flooded during Hurricane Irene. Additionally, it appears that the property owner, VWP, Inc., declared bankruptcy, while Mr. Freligh’s employer, VW Parts, Inc., did not. In any event, even if his employer3 declared bankruptcy, that would not mean that the company would immediately close its door and lay off its employees. Companies that file for bankruptcy often continue to operate while restructuring. Significantly, even if the Court accepts Appellant’s speculative theory that Mr. Freligh would have lost his job at some point after he began working at VW Parts, he would have been eligible to collect unemployment benefits. Under such circumstances, Appellant would be obligated to pay Mr. Freligh at the rate of unemployment benefits that he would have been entitled to receive. See, e.g., State Farm Mut. Auto. Ins- Companies v. Brooks. 78 A.D.2d 456, 458 (4th Dep’t 1981). Stated differently, “[wjhere j the injury renders an unemployed applicant ineligible to receive unemployment benefits, the applicant shall be entitled to receive payments for loss of earnings from work equivalent in value to the unemployment benefits which the applicant would otherwise have received.” 11 NYCRR 65.15(0)(2)(v). 13 ~) Moreover, in the event that Mr. Freligh lost his job with VW Parts, he would have sought other employment. However, his injuries from the 12/23/12 collision prevented him from doing so. Under any of the above scenarios, Mr. Freligh would have earned money while working had he not been injured in the collision. At the very least, there are questions of fact about this issue that should be resolved by a jury. Appellant relies on the distinguishable case of Sharpe v. Allstate Ins. Co.. 14) A.D.3d 774 (3d Dep’t 2005). In Sharpe, the plaintiff was not employed at the time of the collision, nor was there any indication that he had received any job offers while looking for employment before the collision. In the year after the collision, the plaintiff took an examination for entry into the State Police. He passed the examination, but sought deferment due to his injuries. The Court in Sharpe referenced 11 NYCRR 65-3.16(b)(3), which states that the “[ljoss of earnings from work shall not necessarily be limited to the applicant’s level of earnings at the time of the accident, but may also include demonstrated future earnings reasonably projected.” Id. at 788. The Court ultimately ruled in favor of the defendant D because the requisite degree of certainty was lacking. The “[pjlaintiff s entry into the State Police Academy and its deferral as a result of the knee injury could not have been reasonably contemplated by either party at the time of the accident, rendering his claim entirely speculative.” Id- The distinguishing feature of the case at bar is that Mr. Freligh was offered and accepted a job that had a certain salary and a specific starting date prior to the collision, but he was unable to begin working at this job due to his injuries from 14 ~) the collision. Thus, there is reasonable certainty with regard to Mr. Freligh’s lost earnings. Appellant also relies on State Farm Mut. Auto. Ins. Co. v. Stack. 55 A.D.3d 594 (2d Dep’t 2008), which contains sparse facts. The Court held that the plaintiff did not submit adequate documentation to show that “he was unable to maintain his real estate business and stock market portfolio in the manner to which he was accustomed.” Id- at 596. The Court did not offer much of an explanation in this regard.:> Additionally, Appellant cited Faas v. State. 249 A.D.2d 731, 733 (3d Dep’t 1998), where “the only evidence submitted in support of [the plaintiffs lost earnings] claim was claimant’s testimony regarding the limitations caused by his injury and the number of days missed from work; such testimony, unaccompanied as it was by any documentation such as pay stubs or tax returns, lacked sufficient detail to support an award for lost wages.” Here, unlike Faas. there is substantially more than Mr. Freligh’s testimony alone to substantiate his lost earnings claim. Contrary to Appellant’s assertions, die evidence in the case at bar would “enable the ) jury to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence.” Burgos v. Aqueduct Realty Corn.. 92 N.Y.2d 544, 550 (1998) (referencing Schneider v Kings Highway Host?. Ctr.. 67 N.Y.2d 743 (1986); Gavle v. City of New York. 92 N.Y.2d 936 (1998)); see also Costello v. Pizzeria Uno of Albany. Inc.. 139 A.D.3d 1336, 1338 (3d Dep’t 2016). 15 J ~) MR. FRELIGH’S LOST WAGE CLAIM WAS AMPLY VERIFIED BY APPELLANT, BOTH THROUGH DOCUMENTARY EVIDENCE AND TESTIMONY. n. “Where an insurer fails to pay or deny a claim within the requisite 30 days under the statute and regulations following its receipt of the proof of claim, the insurer is subject to ‘substantial consequences,’ namely, preclusion “from asserting a defense against payment of the claim.” Viviane Etienne Med. Care. P.C. v. Country-Wide Ins. Co.. 25 N.Y.3d 498, 506 (2015) (referencing Fair Price Med. Supply Corn, v. Travelers Indem. Co., 10 N.Y.3d 556, 563 (2008)). “The only exception to preclusion recognized by this Court arises where an insurer raises lack of coverage as a defense.” Id. (referencing Fair Price Med, Supply Corp, 10 N.Y.3d at 563; Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co.. 9 N.Y.3d 312, 318 (2007); Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 199 (1997)). “This Court has recognized that preclusion may require an insurer to pay a no-fault claim it might not have had to honor if it had timely denied the claim.” Id. (referencing Presbyterian Hosp., 90 N.Y.2d at 285). “Nonetheless, we emphasized that the great convenience of ‘prompt uncontested, first- party insurance benefits’ is “part of the price paid to eliminate common-law contested lawsuits.” Id. (referencing Presbyterian Hosp., 90 N.Y.2d at 28; Fair Price Med. Supply Corp. 10 N.Y.3d at 565-566). In the case at bar, Appellant has not issued a denial of Mr. Freligh’s no fault claim. Appellant requested additional verification and has long since received whatever information it could possibly need to evaluate Mr. Freligh’s claim. The only qualm that Appellant has with regard to the proof of claim aspect is that it 16 ■) did not receive a completed NF-6 form from Mr. Freligh’s employer. Appellant is untenably requesting that Mr. Freligh’s lost wage claim be dismissed simply because his employer did not complete a specific form, which the employer disputes ever receiving. (R. at 138-39; 413). Appellant has received all of the information that would be contained on an NF-6 form through the various submissions that were made by Mr. Freligh and his counsel, and also through conducting two depositions of Mr. Hrazanek. The claim has been verified. Appellant received a no fault application from Mr. Freligh; received Mr. Freligh’s resume; obtained Mr. Freligh’s employment application for VW Parts; hired an investigator who contacted Mr. Hrazanek about Mr. Freligh’s employment; deposed Mr. Freligh once and Mr. Hrazanek twice; and obtained numerous additional documents that support Mr. Freligh’s claim. (R. at 32-37; 41-47; 50-60; 88-89; 91-397). As such, there has been more than substantial compliance with the defendant’s request. Appellant is not claiming that there is any additional information needed to verify Mr. Freligh’s claim. Rather, Appellant is alleging that Mr. Freligh’s claim is not ripe because the formality of submitting an NF-6 form was not followed, which is not a valid D basis to refuse to pay a claim. 11 NYCRR 65-3.5(m) provides that “[t]he failure of an employer, or other third party, to provide information necessary to establish proof of claim for lost wages on behalf of an applicant shall not be utilized as a basis for denial of claim based upon late submission of proof of claim.” This regulation is designed to prevent insurers from denying claims based on an employer’s failure to submit requested forms or documents. 17 ■) While an insurer is not required to pay or deny a claim until it has been verified, Appellant has verified Mr. Freligh’s claim in a belabored and exhaustive manner. Furthermore, 11 NYCRR 65.15(e) mandates “At a minimum, if any requested verification has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was originally requested, either by a telephone call, properly documented in the file, or by mail. At the same time the insurer shall inform the applicant and such!) person’s attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested.” In the instant case, there is no evidence that Appellant met or attempted to meet these requirements. Appellant argues that its investigation “raised doubts” about Mr. Freligh’s claim. (Appellant’s Brief at 13). However, an insurance adjuster’s doubts about a claim will not entitle an insurance company to summary judgment. Rather, at most, there are credibility issues that cannot be resolved on a summary judgment motion. It is well-settled that “[i]t is not the court’s function on a motion for summary judgment to assess credibility.” Ferrante v. Am. Lung Ass’n. 90 N.Y.2d 623, 631 (1997); see also Friends of Thayer Lake LLC v. Brown. 27 N.Y.3d 1039, 1044 (2016); Aoki v. Aoki. 27 N.Y.3d 32, 45 (2016). Accordingly, Appellant’s summary judgment motion was properly denied. CONCLUSION “Summary judgment is the procedural equivalent of a trial.” England v. Vacri Const. Corp., 24 A.D.3d 1122, 1124 (3d Dep’t 2005). “Issue finding, rather than issue determination, is the function of the court on a motion for summary judgment.” Patricia 18 3 0 YY v. Albany County Dept, of Social Services, 238 A.D.2d 672, 673 (3d Dep’t 1997). Based on the foregoing, Mr. Freligh respectfully requests that the Court affirm the Decision and Order of the Supreme Court. Dated: February 13, 2017 Kingston, New York :tfully Submitted, D DEREK J. SP, BASCH & Ki Attorneys for Appellant 307 Clinton Avenue P.O. Box 4235 Kingston, New York 12402 (845) 338-8884 \, LLP 3 19