Stolowskiv.234 East 178th Street LLC

Supreme Court, Appellate Division, First Department, New York.Nov 15, 2011
933 N.Y.S.2d 232 (N.Y. App. Div. 2011)
933 N.Y.S.2d 23289 A.D.3d 5492011 N.Y. Slip Op. 8222

2011-11-15

Eugene STOLOWSKI, et al., Plaintiffs,Eileen Bellew, etc., et al., Plaintiffs–Respondents, v. 234 EAST 178TH STREET LLC, Defendant–Appellant,The City of New York, Defendant.Eugene Stolowski, et al., Plaintiffs–Respondents, v. 234 East 178th Street, LLC, Defendant–Appellant,The City of New York, Defendant.[And Other Actions].

Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for appellant. Sullivan Papain Block McGrath & Cannavo P.C., New York (Stephen C. Glasser of counsel), for Eugene Stolowski, Brigid Stolowski, Eileen Bellew, Jeffrey G. Cool, Sr., Jill Cool, Joseph P. DiBernardo and Brandan K. Cawley, respondents.


Lester Schwab Katz & Dwyer, LLP, New York (John Sandercock of counsel), for appellant. Sullivan Papain Block McGrath & Cannavo P.C., New York (Stephen C. Glasser of counsel), for Eugene Stolowski, Brigid Stolowski, Eileen Bellew, Jeffrey G. Cool, Sr., Jill Cool, Joseph P. DiBernardo and Brandan K. Cawley, respondents. Meyer, Suozzi, English & Klein, P.C. Garden City (Andrew J. Turro of counsel), for Jeanette Meyran, respondent.ANDRIAS J.P., FRIEDMAN, DeGRASSE, FREEDMAN, MANZANET–DANIELS, JJ.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about February 10, 2010, which, insofar as appealed from as limited by the briefs, denied defendant 234 East 178th Street LLC's motion to compel plaintiffs Bellew and Meyran to provide authorizations for death benefit information, unanimously reversed, on the law and the facts, without costs, and the motion granted. Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered March 7, 2011, which, insofar as appealed from as limited by the briefs, denied 234 East 178th Street LLC's motion for a protective order as to post-fire repairs and remedial measures, unanimously reversed, on the law and the facts, without costs, and the motion granted.

Defendant bears the burden of establishing by clear and convincing evidence that it is entitled to an offset for any collateral source payment that represents reimbursement for a category of loss that corresponds to a category of loss for which damages are awarded in this action ( see CPLR 4545; Oden v. Chemung County Indus. Dev. Agency, 87 N.Y.2d 81, 637 N.Y.S.2d 670, 661 N.E.2d 142 [1995] ). Thus, disclosure of the death benefits that were or will be received by plaintiffs Bellew and Meyran is material and necessary in defense of this action ( see CPLR 3101). The collateral source hearing at which a defendant has the opportunity to make the above showing is held after a verdict has been rendered in the plaintiff's favor. However, “[p]retrial discovery is available so defendants can acquire information and documents that may later be used to support a motion for a collateral source hearing” ( Firmes v. Chase Manhattan Auto. Fin. Corp., 50 A.D.3d 18, 35, 852 N.Y.S.2d 148 [2008], lv. denied 11 N.Y.3d 705, 866 N.Y.S.2d 608, 896 N.E.2d 94 [2008] ).

The records of defendant's post-fire repairs and remedial measures do not fall within any of the recognized exceptions to the general rule that evidence of post-accident repairs is generally inadmissible and may never be admitted to prove an admission of negligence ( see Fernandez v. Higdon El. Co., 220 A.D.2d 293, 632 N.Y.S.2d 546 [1995] ). Contrary to plaintiffs' contentions, “general credibility impeachment” is not an exception. Control is not at issue here since defendant concedes that it owns the premises ( see Hyman v. Aurora Contrs., 294 A.D.2d 229, 743 N.Y.S.2d 12 [2002] ). The fire department's full investigation of the fire, which produced diagrams and photographs, provides evidence of the existence of a defective condition ( compare Mercado v. St. Andrews Hous. Dev. Fund Co., 289 A.D.2d 148, 734 N.Y.S.2d 436 [2001] [plaintiff entitled to seek disclosure of post-accident repairs or modifications where defective condition of sidewalk could not be proven otherwise]; Longo v. Armor El. Co., 278 A.D.2d 127, 720 N.Y.S.2d 443 [2000] [same; parts removed during repair of defective elevator were discarded] ).