Young v. Knickerbocker Arena3/15/2001
Appeals (1) from an order of the Supreme Court (Ceresia Jr., J.), entered August 9, 1999 in Albany County, which, inter alia, denied defendants' motion directing plaintiff Jovette Young to submit to a vocational rehabilitation assessment, (2) from an order of said court (Ferradino, J.), entered September 15, 1999 in Albany County, which, inter alia, granted plaintiffs' motion to preclude the use of a surveillance video, (3) from an order of said court (Leaman, J.), entered June 19, 2000 in Albany County, which, inter alia, reduced plaintiffs' award for lost earnings up to the date of the verdict, and (4) from a judgment of said court (Leaman, J.), entered September 19, 2000 in Albany County, upon a verdict rendered in favor of plaintiffs.
Plaintiffs commenced this action seeking to recover for injuries sustained by plaintiff Jovette Young in October 1995 while attending a concert at defendant Knickerbocker Arena in the City of Albany. The incident occurred when defendant Paul Pignatelli, a security guard for the arena, ran into Young while she was returning to her seat. The matter proceeded to trial in August 1999, at the conclusion of which the jury returned a verdict in favor of plaintiffs and awarded damages in the amount of $8,300 for medical expenses, $83,000 for past lost earnings, $68,000 for past pain and suffering, $450,000 for future lost earnings and $100,000 for future pain and suffering. Thereafter, in January 2000, Supreme Court conducted a collateral source hearing pursuant to CPLR 4545 and, inter alia, reduced the $83,000 award for past lost earnings by $80,244.57, representing $34,278.70 in Social Security benefits received by Young, $17,109.00 in Social Security benefits received by Young's three children and $28,856.87 in disability benefits received by Young from Hartford Insurance Company. Supreme Court also denied defendants' request for an offset against the future lost earnings award of $450,000, finding that defendants failed to establish by clear and convincing evidence Young's future eligibility to receive Social Security and disability benefits. These appeals ensued.
Defendants' appeals primarily challenge the propriety of two pretrial rulings, Supreme Court's failure to declare a mistrial and Supreme Court's refusal to offset the jury's award with respect to Young's future lost earnings. We will address each of these points ad seriatim.
Prior to trial, defendants moved by order to show cause seeking, inter alia, an order directing Young to submit to a vocational rehabilitation assessment. By order entered August 9, 1999, Supreme Court (Ceresia Jr., J.), inter alia, denied defendants' application. As there is "no statutory authority to compel the examination of an adverse party by a nonphysician vocational rehabilitation specialist" (Mooney v Osowiecky, 215 AD2d 839, 839; cf., Krajewski v Rosinski, 212 AD2d 886, 887), and as the circumstances of this case do not otherwise warrant the granting of such relief (compare, Bradley v Fisher Assocs., 251 AD2d 440 [court improvidently exercised its discretion in denying the defendants' cross motion for such an examination where the plaintiff had retained her own nonphysician vocational rehabilitation expert]; Diviesti v Sudds, 249 AD2d 503; Kavanagh v Ogden Allied Maintenance Corp., 245 AD2d 341, affd 92 NY2d 952), Supreme Court properly denied defendants' application. We find defendants' assertion that they were entitled to an additional independent medical examination of Young equally unavailing and, accordingly, Supreme Court's August 9, 1999 order is affirmed.
Also prior to trial, plaintiffs moved to preclude defendants' use of a surveillance tape made in June 1998 due to defendants' fai
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