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Burden on Defendant to Establish Collateral Source (NY)

May 26, 2017

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<p style="text-align: justify;">Under New York law, collateral offsets are an important tool in limiting damages and preventing plaintiffs from receiving duplicative recovery in a personal injury case. But a recent decision underscored the fact that the defendant is the party who carries the burden of establishing, to a reasonable certainty, that the plaintiff will receive collateral source payments. In <em><a href="http://law.justia.com/cases/new-york/appellate-division-second-department/2017/2015-02116.html">McKnight v. NYCTA</a></em>, the Second Department addresses the burden of proof necessary for a defendant to obtain a collateral source off-set.</p>
<p style="text-align: justify;">Plaintiff Rosemary McKnight was injured when a bus she was riding to school was involved in a motor vehicle accident. She obtained a judgment in her favor, which included $190,000 for past medical expenses, $80,000 for past lost earnings, and $400,000 for future lost earnings. The defense sought to have these awards off-set under CPLR 4545, on the basis that the plaintiff was already receiving both social security benefits and workers’ compensation benefits from a 2002 work-related accident.</p>
<p style="text-align: justify;">The defense provided testimony from the plaintiff and documentary evidence showing that the plaintiff was receiving $205 a week in workers’ compensation benefits. The Court found that evidence sufficient to grant a collateral offset, and the plaintiff’s awards of past and future lost wages were reduced in kind.</p>
<p style="text-align: justify;">However, the defense provided no documentary evidence from the Social Security Administration regarding the amount or duration of plaintiff’s social security benefits. The defense did offer testimony from the plaintiff indicating that she received monthly benefits, but that testimony was inconsistent as to the amounts received. The court found this proffer of evidence insufficient, and found that the defense failed to establish with a reasonable degree of certainty that plaintiff was receiving social security benefits; therefore, no collateral source offset was granted.</p>
<p style="text-align: justify;">Thanks to John Collins for his contribution to this post and please write to <a href="mailto: mbono@wcmlaw.com">Mike Bono</a> for more information.</p>

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