Johnson v. New York City Transit Authority ( 2011 )

Friedman, J.(dissenting in part).

I agree with the majority that the trial court erred in failing to submit to the jury the issue of plaintiffs comparative negligence. In my view, however, at the new trial to be held on remand, both defendant’s liability and plaintiffs comparative negligence should be at issue. That is to say, one jury should consider, afresh and in a single deliberation, each party’s responsibility, if any, for the accident. The previous jury’s determination of defendant’s liability, rendered without consideration of plaintiffs conduct, should play no role. Where fault must be apportioned between two or more parties, the issue of each party’s liability is inextricably intertwined with the apportionment itself. Moreover, it can reasonably be anticipated that the jurors at the new trial will be subtly prejudiced against defendant if they are instructed to begin by assuming that defendant was at fault and only then to consider whether plaintiff herself bears any degree of responsibility for her injuries. By the same token, it is reasonable to infer that a liability verdict against defendant was rendered more likely at the first trial by the court’s decision not to submit for the jury’s consideration the issue of plaintiffs comparative negligence. Since the evidence raises issues concerning each party’s fault, fairness demands that the liability phase of this matter in its totality — encompassing defendant’s liability, plaintiff’s comparative negligence, and the parties’ relative culpability — be submitted to the same factfinder at one trial.¹

Further, I cannot see that plaintiff should be heard to complain of the supposed inefficiency of retrying the issue of defendant’s liability. Plaintiff herself bears a significant measure of responsibility for that inefficiency, as no retrial would have been needed but for the erroneous ruling at the first trial, made at plaintiffs behest, that the jury would not be charged on comparative negligence. In any event, as a practical matter, the new jury will not be able to apportion fault between the parties unless it is presented with evidence of defendant’s conduct. In other words, the parties’ relative fault cannot be determined by consideration of plaintiffs conduct alone. Given the interdependency of the proofs bearing on the issues of liability and apportionment, withholding the issue of defendant’s liability from the jury apportioning fault will not realize any significant judicial economy.²

Contrary to the majority’s assertion, I do not “fail[ ] to recognize” the first jury’s liability finding against defendant. Rather, I consider that finding to be tainted by the court’s legal error in withholding the comparative negligence issue from the jury. I respectfully disagree with the majority’s apparent assumption that the error in failing to issue a comparative fault charge had no effect on the jury’s consideration of defendant’s liability. Further, the majority’s concern that it would somehow be “unfair” to plaintiff to order a retrial of the issue of defendant’s liability overlooks the fact that a new trial is required because of a legal error that the trial court made at plaintiffs behest (that is, the court ruled that comparative fault would not be charged upon plaintiffs objection to defendant’s request for such a charge). In cases where a legal error has occurred at a trial (usually, as here, at the behest of the winning party), appellate courts routinely give the losing party, notwithstanding that it “already lost on [the] question at a jury trial,” a “second chance” to make its case at a new trial. I see nothing unfair or unusual in following the same practice in this case.

In my view, this case is controlled by the Court of Appeals’ affirmance of this Court’s decision in Thoma v Ronai (189 AD2d 635 [1993], affd 82 NY2d 736 [1993]), which we recently followed in Lopez v Garcia (67 AD3d 558 [2009]) and which is followed as binding precedent in the Second Department (see e.g. Roman v A1 Limousine, Inc., 76 AD3d 552, 553 [2010]). In the incident underlying Thoma, the defendant’s van struck the plaintiff, a pedestrian, as she was crossing an intersection. This Court affirmed the denial of the plaintiffs summary judgment motion, stating:

“Although defendant did not dispute plaintiffs averment that she was lawfully in the crosswalk when he struck her with his van as he turned left, summary judgment was properly denied since a failure to yield the right of way does not ipso facto settle the question of whether the other party was herself guilty of negligence” (189 AD2d at 635-636).

The Court of Appeals affirmed this Court’s order with the following explanation:

“The submissions to the nisi prius court . . . demonstrate that [plaintiff] may have been negligent in failing to look to her left while crossing the intersection. Plaintiffs concession that she did not observe the vehicle that struck her raises a factual question of her reasonable care. Accordingly, plaintiff did not satisfy her burden of demonstrating the absence of any material issue of fact and the lower courts correctly denied summary judgment” (82 NY2d at 737).

While this appeal, unlike Thoma, is taken from a judgment after trial, the implication of Thoma for this case is that defendant’s liability should be retried. The majority’s remand for a new trial solely as to comparative negligence yields the same result found unacceptable in Thoma — submission of liability and apportionment issues to the factfinder in bits and pieces rather than as an integrated whole. Indeed, in this case, where it is undisputed that a triable issue exists as to defendant’s negligence, there is even less justification for trying comparative negligence in isolation than in Thoma, where the pretrial record established the defendant’s negligence as a matter of law.

The cases the majority relies upon in limiting the new trial to the issue of comparative negligence do not support its refusal to follow Thoma. To the extent the majority’s position is consistent with Delemos v White (173 AD2d 353 [1991]), any precedential authority of Delemos on this issue is substantially vitiated by the Court of Appeals’ intervening Thoma decision. Similarly, I would respectfully decline to follow our decisions in Strauss v Billig (78 AD3d 415 [2010], lv dismissed 16 NY3d 755 [2011]) and Tselebis v Ryder Truck Rental, Inc. (72 AD3d 198 [2010]) on this issue on the ground that Strauss and Tselebis simply cannot be reconciled with Thoma.³ Finally, in each of our two decisions of this year on which the majority relies, the precise issue of whether the existence of a triable issue as to the plaintiffs comparative fault required a trial on the issue of the defendant’s liability was not even presented by the parties for resolution on the appeal.⁴

Turning to the matter of the amount of recoverable damages, I concur with the majority insofar as it affirms the trial court’s order denying defendant’s application for a collateral source offset against the award of economic damages pursuant to CPLR 4545 former (c) (now CPLR 4545 [a]) based on plaintiffs receipt of a line-of-duty accident disability retirement pension equal to three quarters of her last annual salary (see Administrative Code of City of NY §§ 13-252, 13-258 [3]).⁵ I arrive at this conclusion, however, by a route different from that taken by the majority.

In Oden v Chemung County Indus. Dev. Agency (87 NY2d 81 [1995]), the Court of Appeals established the rule that an offset against economic damages under CPLR 4545 is available only where “the collateral source payment represents reimbursement for a particular category of loss that corresponds to a category of loss for which damages were awarded” (id. at 84). The majority apparently believes that Oden, by itself, dictates the result on the collateral source issue in this case. I disagree. Although the Court of Appeals held that the private-sector disability pension benefits received by the plaintiff in Oden could not be set off against the jury’s lost-earnings award (but were properly set off against the award for lost ordinary pension benefits), the holding was based on the particular characteristics of that pension. Specifically, the Court of Appeals found that the pension in Oden “d[id] not necessarily correspond to any future earning capacity plaintiff might have had” because, inter alia, the plaintiff “would have been free to earn income from his labor in other capacities without loss of his disability retirement pension benefits” (87 NY2d at 88-89).⁶

Oden did not set forth any general rule that disability pensions do not compensate for lost earning capacity; did not require a defendant seeking to use disability pension benefits as an offset to present testimony about the subjective intent of the founders or administrators of the pension system; and did not concern a New York City municipal accident disability pension such as the one at issue here.⁷ In fact, the police accident disability retirement pension at issue in this case is readily distinguishable from the private-sector disability pension at issue in Oden in that plaintiffs police disability pension benefits are required by law to be reduced in the event she actually earns, or manifests the ability to earn, a level of income exceeding a defined maximum amount (see Administrative Code § 13-254).⁸ Arguably, this provision demonstrates that plaintiffs police accident disability pension is intended to replace the salary she would have earned but for the disability resulting from her service-connected injury.⁹

Nonetheless, and notwithstanding that Oden is not dispositive of the issue as presented in this case, I conclude, on constraint of this Court’s decision in Gonzalez v Iocovello (249 AD2d 143 [1998], affd on other grounds 93 NY2d 539 [1999]), that plaintiff’s accident disability pension cannot be offset against her award for lost earnings. In Iocovello, we held that the City of New York was not entitled to an offset under CPLR 4545 against a former police officer’s lost earnings awards based on his accident disability pension because “the City failed to demonstrate with reasonable certainty that the accident retirement benefits at issue will replace those awards” (249 AD2d at 144).¹⁰ A review of the briefs on which this Court decided Iocovello reveals that the City in that case made arguments very similar to those made by defendant herein for reducing the jury’s lost earnings award by the amount of the police accident disability pension the plaintiff received (like plaintiff herein) pursuant to Administrative Code § 13-252. Further, in Iocovello as in this case, the arguments offered for deeming the pension a replacement for lost earnings were based chiefly on the construction of the statutes establishing the pension (although in this case defendant offered evidence on the way the statutes operate, without citing them). Finally, in Iocovello, as here, the plaintiffs argument for not applying an offset was essentially that the defense failed to establish that the purpose of the pension was to replace lost earnings. In sum, Iocovello cannot be distinguished from this case insofar as the collateral source issue is concerned.

While I might have reached a different conclusion if we were writing on a clean slate, the fact is that this Court has already spoken to the collateral source issue presented in this case, and a majority of this bench has determined to adhere to that precedent. Still, it cannot be denied that our resolution of this issue in Iocovello is subject to reasonable criticism on the ground that it, in effect, bestows on a plaintiff receiving a municipal accident disability pension the windfall of double compensation for a portion of his or her economic loss. Significantly, the Second Department has held that a New York City firefighter’s line-of-duty accident disability pension benefits (which clearly parallel the instant plaintiffs police pension benefits) “correspond directly with the jury’s award for future lost wages” (Terranova v New York City Tr. Auth., 49 AD3d 10, 19 [2007], lv denied 11 NY3d 708 [2008]) and therefore qualify as “a collateral source within the meaning of CPLR 4545 (c) that must be set off against the amount of the verdict” (49 AD3d at 20). It is also noteworthy that this Court’s resolution of the collateral source issue in locovello appears to be inconsistent with the result we reached earlier in Iazzetti v City of New York (216 AD2d 214 [1995], appeal after remand 256 AD2d 140 [1998], read on other grounds 94 NY2d 183 [1999]), where we said that a former city employee’s accident disability pension “should be offset against his recovery for postverdict loss of earnings, otherwise he will benefit from precisely the kind of double recovery that the Legislature sought to eliminate” (216 AD2d at 215).¹¹

I am at a loss to understand the majority’s assertion that, because defendant has not cited the statutes governing plaintiffs police accident disability pension (although defendant did present testimony accurately describing the operation of those statutes), “[w]e cannot assume that these provisions are applicable, and, in the absence of any citation to them by defendant, we decline to speculate.” It is undisputed that plaintiff is receiving an accident disability pension from the police pension fund, which, unquestionably, must be authorized by statute. The majority, while it asserts that “it is not clear which pension provisions of the Administrative Code or other statutes may apply here,” does not suggest any statutes other than those I have cited that might govern plaintiff’s pension. The Court of Appeals itself has recognized the Administrative Code provisions governing pensions of this kind (see Matter of Starnella v Bratton, 92 NY2d 836, 838 [1998]), and cases involving such pensions routinely come before this Court (see e.g. Matter of Kelly v Kelly, 82 AD3d 544 [2011]). Even if this were a more obscure area of the law, we would be obligated to consider those Administrative Code provisions, because we are required to “take judicial notice without request of the . . . public statutes of the United States and of every state . . . and of all local laws” (CPLR 4511 [a]). To the extent any doubt might remain, both the Court of Appeals and this Court have recognized that the Administrative Code of the City of New York is entitled to judicial notice (see Andy Assoc. v Bankers Trust Co., 49 NY2d 13, 23 [1979]; Howard Stores Corp. v Pope, 1 NY2d 110, 115 [1956]; Sweeney v Bruckner Plaza Assoc., LP, 20 AD3d 371, 372 n [2005]; Chanler v Manocherian, 151 AD2d 432, 433 [1989]; see also Administrative Code § 1-104 [a] [“All courts shall take judicial notice of all laws contained in the code” of the City of New York]).

Our decision today requires defendant to pay damages for lost earnings for which plaintiff apparently is already receiving (or has received) compensation in the form of an accident disability pension. The statutory framework of New York City’s pension system, no less than common sense, points to this conclusion. While I join the majority in affirming the denial of a collateral source offset based on plaintiffs pension, I find it troubling that existing law in this Department leads to this outcome. My concern is heightened by the majority’s further decision — from which I dissent — to exclude from the scope of the new trial on comparative fault the issue of defendant’s liability and to instruct the new jury that, in considering whether plaintiff was at fault, it should assume at the outset, not as a matter of law but based on a fact-finding made by the previous jury, that defendant was negligent and that its negligence was a proximate cause of the accident. It seems to me that this will have the unintended effect of unfairly “tilting the playing field” against defendant at the new trial by tending to influence the jury to minimize plaintiffs fault or to exonerate her altogether. In my view, fairness dictates that the parties be placed on an even footing at the new trial, meaning that the new jury should be asked to determine anew both defendant’s liability and plaintiffs comparative fault.

For the foregoing reasons, I respectfully dissent insofar as the majority excludes the issue of defendant’s liability from the scope of the new trial to be held upon remand, and otherwise concur in the majority’s disposition of the appeal.

Renwick and Manzanet-Daniels, JJ., concur with Richter, J.; Andrias, J.E, and Friedman, J., dissent in part in a separate opinion by Friedman, J.

Judgment, Supreme Court, Bronx County, entered March 25, 2009, reversed, on the law, without costs, the judgment vacated and the matter remanded for a new trial limited to the issue of plaintiffs comparative negligence.

1 . I do not share the majority’s confidence that “[ajny potential prejudice to defendant” at the new trial can be “easily averted” by an unspecified “appropriate jury instruction” and similarly unspecified “special interrogatories.”

2 . I note that this panel is in unanimous agreement that there is no need to retry the issue of damages, which does yield a considerable judicial economy and savings to the parties.

3 . In fact, the Second Department in Roman v A1 Limousine (supra) specifically noted the conflict between Thoma and Tselebis on this issue and determined to follow the former (76 AD3d at 553).

4 . An examination of the briefs in Wright v Riverbay Corp. (82 AD3d 444 [2011]) shows that the Wright defendant, in appealing to this Court, never argued that the trial court’s erroneous failure to charge comparative negligence required a new trial on the issue of defendant’s liability as well as on the issue of comparative negligence. Given that the Wright defendant was not requesting a new trial as to its own liability, the majority is simply incorrect in asserting that Wright is “directly on point.” In Gonzalez v ARC Interior Constr. (83 AD3d 418 [2011]), it was the plaintiff, not the defendants, who took the appeal from an order that, while granting her summary judgment as to liability, directed that the damages trial encompass the issue of comparative fault. Since the ARC Interior defendants had not filed a notice of appeal, there would have been no basis to grant them affirmative relief on this issue even if they had requested it (see e.g. 61 W. 62 Owners Corp. v CGM EMP LLC, 16 NY3d 822, 823 n [2011]; Hecht v City of New York, 60 NY2d 57, 61-62 [1983]). Accordingly, the statement in ARC Interior approving the Tselebis holding (83 AD3d at 419) concerned an issue that was not before the Court.

5 . I refer to the governing provision by its former designation (CPLR 4545 [c]) because the Legislature specified that the amendment redesignating the provision as CPLR 4545 (a) applies only to cases commenced on or after the amendment’s effective date (see L 2009, ch 494, part F, § 9). In any event, the amendment did not effect any change in the substantive law applicable to this case.

6 . In a case decided about three and a half years after Oden, the Court of Appeals noted that the City of New York had raised the issue of “whether a direct correspondence exists between plaintiff’s [municipal] accident disability retirement pension and his future lost earnings” so as to justify offsetting the pension benefits against future lost earnings, but found it unnecessary to reach that issue (Iazzetti v City of New York, 94 NY2d 183, 191 [1999]).

7 . Moreover, a review of the briefs on which the Court of Appeals decided Oden reveals that the appellant, which argued for its entitlement to a collateral source offset, said nothing at all about whether the Oden disability pension compensated for lost earnings. Rather, the Oden appellant devoted its entire argument to the contention (which the Court of Appeals rejected) that a collateral source payment need not match a category of damages awarded by the jury in order to qualify as an offset. Thus, Oden casts little light on the kind of showing necessary to establish a correspondence between a collateral source payment and a category of damages included in a jury award.

8 . At the collateral source hearing, the expert witness called by defendant gave testimony describing the effect of Administrative Code § 13-254, although he did not cite the statute.

9 . That the jury awarded plaintiff damages for lost earnings in an amount exceeding the police salary she lost as a result of the early retirement compelled by her injuries is irrelevant to the question of whether the disability pension should be set off against the portion of her damages based on the loss of her police salary. Plainly, the disability pension benefits (constituting three quarters of plaintiffs last annual police salary) could be used as an offset only against damages for the loss of the police salary. In other words, if an offset were to be applied based on the disability pension, the lost-earnings award would be reduced to the extent of the pension benefits received, or to be received in the future, during the period in which plaintiff would have been earning a police salary but for her disability (i.e., through the date she had planned to retire before she incurred the disability). To the extent plaintiff was awarded damages for the loss of the opportunity to earn overtime compensation in addition to her regular salary, the offset for the pension (which is three quarters of her regular salary) would not reach the portion of the damages award based on the loss of overtime. Moreover, if any component of the disability pension is based on plaintiffs contributions to the pension plan, that component of the pension would have to be excluded from the offset.

10 . It appears that the collateral source issue was not raised on the appeal to the Court of Appeals in Iocovello. Rather, on its appeal to the Court of Appeals, the City chose to focus on its claim that the lawsuit was not authorized by General Municipal Law § 205-e.

11 . As noted, however, our 1995 decision in lazzetti was ultimately reversed, albeit on other grounds, when the case came before the Court of Appeals in 1999. In any event, where there is a conflict between our own precedents, the more recent decision should be followed.