New York State Court of Claims

New York State Court of Claims

HORST v. THE STATE OF NEW YORK, #2005-016-033, Claim No. 104357, Motion Nos. M-69771, M-69796


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-69771, M-69796
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
The Jacob D. Fuchsberg Law Firm, LLPBy: Erin K. Hurley, Esq.
Defendant's attorney:
Morrison Mahoney LLPBy: Justin M. Fabella, Esq.
Third-party defendant's attorney:

Signature date:
April 21, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Heidi Horst was struck by a car on September 9, 1999 while rollerblading in an area that was part of the State's major reconstruction of the West Side Highway in Manhattan. A six-day trial, unified in damages and liability, was completed on November 17, 2004. By Decision dated January 4 and filed January 24, 2005, it was determined that Ms. Horst was damaged in the amount of $606,600; past and future pain and suffering represented $600,000 of the total and lost wages (past only), the balance of $6,600. Responsibility was allocated as follows: 50% on the part of the driver of the car and 25% each to claimant and the defendant State of New York, which resulted in an award to Ms. Horst of $150,000 for pain and suffering and $4,950 in lost wages.

Claimant seeks an Order setting aside this apportionment of fault:

[The State should be] held 100% liable for this occurrence; or, at the very least, 75% responsible for the accident . . . [claimant Heidi Horst] should not have had any percentage of liability assessed against her. . . the percentage of liability assigned non-party Andy Mosquea should be vacated in its entirety [or] . . . substantially reduced." (Claimant's Affirmation in Support, ¶¶4 and 14).

Defendant in its Notice of Motion seeks an Order: "(1) Compelling the claimant to produce evidence of any and all collateral source payments; and (2) reducing judgment in the amount of applicable collateral source payments pursuant to CPLR §4545 . . ."

Claimant submitted the following: a Notice of Motion together with an Affirmation in Support, including exhibits A through D; an Affirmation in Opposition, including exhibit A; and a Reply Affirmation. Defendant submitted the following: a Notice of Motion together with an Affirmation in Support, including exhibits A and B; an Affirmation in Opposition, including exhibit 1; and a "Reply Affirmation and Sur-Reply." Having reviewed these papers, nothing therein offers sufficient grounds to revise the Decision as to the apportionment of fault among claimant, defendant and the driver of the vehicle that struck claimant. It is therefore unnecessary to reach the timeliness issue raised by defendant in its Affirmation in Opposition.

As to defendant's request for a collateral source reduction, such was not raised in its Answer, offered in any amended pleading (see Wooten v State of New York, 302 AD2d 70, 753 NYS2d 266 (4th Dept 2002), lv denied 1 NY3d 501, 775 NYS2d 239 (2003)), or at trial - - it did not appear until defendant's letter of February 4, 2005. Defendant's Notice of Motion implicitly acknowledges this tardiness by seeking discovery on the issue. Post-verdict discovery is not appropriate in this matter. Hoffmann v S. J. Hawk, Inc., 177 Misc 2d 305, 676 NYS2d 448 (Sup Ct, Queens County 1998), affd 273 AD2d 200, 709 NYS2d 448 (2d Dept 2000).

In any event, collateral source payments must correspond to a category of loss for which damages were awarded. Oden v Chemung County Industrial Development Agency, 87 NY2d 81, 637 NYS2d 670 (1995). Here the only potential eligible category was lost wages for which Ms. Horst was awarded $4,950. Defendant does not, in its papers, point to anything in the record that supports a collateral source reduction against such wages.[1]
In view of the foregoing, IT IS ORDERED that the motion of claimant (no. M-69771) and that of defendant (no. M-69796) are both denied.

April 21, 2005
New York, New York

Judge of the Court of Claims

[1] Defendant must prove it is entitled to a collateral source reduction by clear and convincing evidence. Caruso v LeFrois Builders, Inc., 217 AD2d 256, 635 NYS2d 367 (4th Dept 1995).