Young v. Knickerbocker Arena3/15/2001
Supreme Court's judgment is affirmed.
Defendants next argue that Supreme Court (Leaman, J.) erred in failing to offset the jury's award for future lost earnings against Young's Social Security and disability benefits. CPLR 4545 (c) requires a court to determine whether a past or future economic cost or expense incurred by a plaintiff in a personal injury action "was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source such as insurance * * * social security" (see, Sternfeld v Forcier, 248 AD2d 14, 16, appeal dismissed 92 NY2d 1045). "Reasonable certainty", in turn, has been deemed to be synonymous with "clear and convincing proof" (see, id., at 16), such that a defendant seeking to offset a personal injury award by a collateral source payment bears the burden of showing that it is "highly probable" that the plaintiff will continue to be eligible for the benefits in question (see, Caruso v Le Frois Bldrs., 217 AD2d 256, 259).
Applying these principles to the matter before us, we are unable to conclude that Supreme Court erred in failing to grant defendants the requested offset. While it is true that the mere possibility that a disabled plaintiff's condition may improve or that the administrative criteria for the receipt of benefits may change is too speculative to preclude application of the collateral source rule (see, id., at 259), the proof adduced at trial and referenced at the collateral source hearing conducted in this matter established that Young had shown some improvement and, although still partially disabled, was capable of performing some limited sedentary work. Based upon this and other evidence in the record, we find that defendants failed to meet their burden of proof with regard to Young's continued eligibility for benefits (compare, id.).
Finally, plaintiffs contend that Supreme Court erred in offsetting the award for past loss of earnings by the amount of Social Security benefits paid to Young's minor children. We agree. The entitlement to such payments belongs to her children, not to Young (see, 42 USC ยง402 ), and, as such, Supreme Court erred in reducing Young's award for past loss of earnings by the amount of the Social Security benefits awarded to her children. Accordingly, Supreme Court's June 19, 2000 order is modified to the extent that the offset for Social Security benefits is limited to the $34,278 received by Young.
Cardona, P.J., Peters, Mugglin and Lahtinen, JJ., concur.
ORDERED that the order entered August 9, 1999 is affirmed, without costs.
ORDERED that the order entered September 15, 1999 is affirmed, without costs.
ORDERED that the order entered June 19, 2000 is modified, on the law, without costs, by reversing so much thereof as reduced the jury's award for past lost earnings by $51,387.70 in Social Security benefits; the reduction for Social Security benefits is limited to $34,278.70; and, as so modified, affirmed.
ORDERED that the judgment is affirmed, without costs.
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