| Lahren v Boehmer Transp. Corp. |
| 2008 NY Slip Op 02251 [49 AD3d 1186] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| LeeAnn Lahren et al., Appellants, v Boehmer Transportation Corp.et al., Respondents. (Appeal No. 1.) |
—[*1] Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (R. Anthony Rupp, III, ofcounsel), for defendants-respondents.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),entered June 27, 2006 in a personal injury action. The judgment, insofar as appealed from, upona jury verdict, awarded plaintiffs the sum of $29,246 for future damages against defendants.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained byLeeAnn Lahren (plaintiff) in a motor vehicle accident. Defendants conceded liability and,following a trial on damages, the jury awarded plaintiffs damages for past and future medicalexpenses, past and future household expenses, past and future pain and suffering, and past loss ofconsortium. Supreme Court denied plaintiffs' post-trial motion to set aside that part of the juryverdict awarding future damages and awarding no damages for future loss of consortium andgranted that part of defendants' post-trial motion for a collateral source offset with respect to theaward for future medical expenses. We note at the outset that, although defendants' post-trialmotion also sought a collateral source offset for past "medical/household" expenses, the court'sdecision indicates that the parties stipulated to an offset for those expenses.
In support of their post-trial motion, plaintiffs contended, inter alia, that the court erred inadmitting a surveillance videotape in evidence. The record establishes, however, that plaintiffsstipulated to its admission in evidence at trial, and plaintiffs thus are deemed to have waived anycontention with respect to it (seegenerally Matter of James Jerome C. v Mary Elizabeth J., 31 AD3d 1184, 1184-1185[2006]; Wittman v Wittman, 302 AD2d 914 [2003]). Plaintiffs also contended in supportof their post-trial motion that the court erred in permitting defendants' attorney to cross-examineplaintiff concerning the amount paid for rent on her home. We reject that contention. Althoughevidence of a party's wealth generally is not admissible (see generally Laidlaw v Sage,158 NY 73, 103 [1899]; Rupert v Sellers, 48 AD2d 265, 269 [1975]), the question atissue herein was not an [*2]inquiry solely into plaintiff's wealth.Rather, the question was relevant to establish that plaintiff had the financial ability to move to amore appropriate single-floor residence in order to accommodate her alleged disabilities resultingfrom the motor vehicle accident, thereby mitigating her damages.
Plaintiffs failed to preserve for our review their further contention in support of theirpost-trial motion that the court erred in requiring their attorney to limit his direct and re-directexamination of plaintiff's doctor to 30 minutes inasmuch as they failed to register an objectionthereto at trial (see CPLR 5501 [a] [3]), and their post-trial motion does not preserve thatcontention for our review (see Andrew vHurh, 34 AD3d 1331 [2006], lv denied 8 NY3d 808 [2007]; Heraud vWeissman, 276 AD2d 376, 377 [2000], lv denied 96 NY2d 705 [2001]). In addition,"[b]y not raising an objection to the verdict before the jury was discharged, plaintiff[s] failed topreserve for our review [their] contention that the verdict is inconsistent" (McEwen v AkronFire Co., 251 AD2d 1044 [1998]).
Insofar as plaintiffs relied in support of their post-trial motion on evidence concerning thenecessity for future household, medical and rehabilitative services, that evidence was contested,as was the evidence that plaintiff would require two future surgeries. Additionally, the testimonyof plaintiff and her husband that plaintiff would be unable to partake in many of the recreationalactivities that she enjoyed before the accident was belied by the surveillance evidence. Weconclude on the record before us that the award for future damages does not deviate materiallyfrom what would be reasonable compensation (see generally CPLR 5501 [c]; Ramosv Ramos, 234 AD2d 439 [1996]), and that the failure to award damages for future loss ofconsortium is not against the weight of the evidence (see generally Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]; Phelinger v Krawczyk, 37 AD3d 1153, 1154 [2007]).
Lastly, the court properly granted that part of defendants' motion for a collateral source offsetfor the award of future medical expenses. "CPLR 4545 (c) authorizes the court in a personalinjury action to reduce the amount of the plaintiff[s'] award if it finds that any element of theeconomic loss encompassed in the award was or will be replaced, in whole or in part, from acollateral source" (Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81, 83-84[1995]). In reducing the amount of the award, the court must find that "any such cost or expensewas or will, with reasonable certainty, be replaced or indemnified . . . from [the]collateral source" (CPLR 4545 [c]; see Caruso v LeFrois Bldrs., 217 AD2d 256, 258-259[1995]). Here, the jury awarded plaintiffs $71,106.49 for future medical expenses, and the partiesstipulated that plaintiff had $175,000 in available no-fault automobile insurance coverage andwas previously paid the sum of $38,310.17 by her no-fault carrier. The "no-fault claim analyst"assigned to plaintiff's file by plaintiff's no-fault insurance carrier testified at the collateral sourcehearing that the carrier would continue to reimburse plaintiff for any medical expenses that itfound to be medically necessary and causally related to the accident. Implicit in the award ofdamages for future medical expenses was the jury's finding that the entire award was forexpenses that will be medically necessary and causally related to the accident. Thus, "[t]his is nota case where it is unclear whether plaintiff would be eligible for collateral source payments"(Caruso, 217 AD2d at 259). Present—Hurlbutt, J.P., Smith, Centra, Lunn andFahey, JJ.