COLLATERAL COMPLEXITIES: UNDERSTANDING CPLR § 4545

By Barbara DeCrow Goldberg

CPLR § 4545, New York’s “collateral source rule,” can potentially reduce a verdict in a personal injury action by thousands or even hundreds of thousands of dollars. The rule requires that “collateral source” payments to a plaintiff, such as Social Security Disability benefits or payments from private medical insurance, be set off against the verdict, provided that they correspond to a category of economic loss for which the jury awarded damages, and, with respect to future benefits, are “reasonably certain” to continue.

While the rule is easily stated, its application can be problematic. This article will discuss the requirements of the collateral source rule and recent decisions concerning such issues as how and when a request for a set-off must be asserted; whether payments to family members qualify as “collateral source reimbursement;” whether the collateral source rule bars a health insurer from recovering benefits paid to the plaintiff; and whether actual receipt of benefits, as opposed to entitlement, is required.

The Applicable Statute

Historical Background

At common law, an injured plaintiff’s recovery could not be reduced by “collateral source” payments from third parties. The underlying rationale was that a tortfeasor who had caused the plaintiff’s injury should not be permitted to save money by showing that the plaintiff had the foresight to procure benefits such as insurance.

Beginning in 1975, however, the New York Legislature limited the common law rule in response to a perceived “medical malpractice crisis” in insurance. Set-offs for collateral source payments were first allowed in medical malpractice actions, and, with the enactment of CPLR § 4545(c) in 1986, were extended to all actions for personal injury, property damage and wrongful death. This evolution of the collateral source rule coincided with an increasing emphasis on making the plaintiff whole, rather than punishing the defendant, as the proper objective of compensatory damages. The stated purpose of CPLR § 4545(c) was to eliminate windfalls and double recoveries for the same loss.¹

The Current Statute

For all practical purposes, CPLR § 4545 (a), applicable to medical, dental and podiatric malpractice actions, and CPLR § 4545 (c), applicable to all other personal injury, property damage and wrongful death actions, are identical.² These sections provide that the trial court “shall,” upon finding that an item of economic loss was or will, with reasonable certainty, be replaced or indemnified from a collateral source, reduce the plaintiff’s award accordingly, after making an adjustment to account for any premiums paid by the plaintiff. CPLR § 4545(b), applicable to certain actions for personal injury and wrongful death against a public employer, is narrower in scope and allows a set-off for past but not future collateral source reimbursement “paid for, in whole or in part, by the public employer.” ³

CPLR § 4545 specifically excludes life insurance and Medicare benefits, as well as those collateral sources “entitled by law to liens against any recovery of the plaintiff.” Most recently, with the enactment of subdivision (d) in 2002, voluntary charitable contributions were exempted from the statutory definition of “collateral source” reimbursement. Thus, for example, if a church or synagogue were damaged by fire as a result of a contractor’s negligence during renovations, and the congregation contributed money for repairs, the contractor could not reduce an award for property damage by the amount of the contributions.

Establishing Entitlement To A Set-Off

Timeliness

A defendant seeking a collateral source set-off must first raise the issue in a timely manner. In Bongiovanni v. Staten Island Medical Group, P.C.,⁴ the court held that “any application for a set-off utilizing a collateral source of payments must be either requested verbally immediately after the jury renders a verdict which includes loss of earnings, or as part of the written single post-trial motion contemplated by CPLR §4406 which shall be made within 15 days of the jury verdict in accordance with CPLR § 4405. ” ⁵

Subsequently, in Wooten v. State,⁶ the Appellate Division held that a defendant must plead collateral sources of payment as an affirmative defense. Although in Wooten the State had not done so, it was allowed to amend its answer on appeal. The Court reasoned that notwithstanding the State’s failure to plead the issue as an affirmative defense, the State had raised it in a timely manner by seeking discovery and moving to fix the amount of the set-off; and that accordingly there was no surprise or prejudice to the claimant. ⁷

If the request is not made prior to the entry of judgment at the latest, the court is likely to find a waiver.⁸ It is not clear, however, that the request must be included within the defendant’s post-trial motion pursuant to CPLR 4404(a), or that it is subject to the 15-day requirement. Notwithstanding the language in Bongiovanni, the Appellate Division in Wooten ruled that a request would be timely if it were made before the entry of judgment, and that the 15 day rule of CPLR § 4405 did not apply. As a practical matter, however, there is no “down side” to including a request for a collateral source hearing in the defendant’s motion to set aside the verdict.

Discovery

Timely discovery of collateral source reimbursement is also essential. The court in Bongiovanni held that discovery of collateral sources of payment should not be deferred until after a jury verdict, but should be done in pre-trial discovery or elicited at trial, unless “it is clearly established pre-trial or during the trial that any applicable collateral sources of payments will be addressed in a post trial hearing as soon after the trial as is practical to the court.”

While some defense counsel, with the apparent acquiescence of their adversaries, do conduct collateral source discovery post-verdict, the safer course is to raise the issue before the verdict, in order to clarify that discovery concerning collateral source payments will be done later, and foreclose any argument that the issue has been waived.

The “Correspondence” Requirement

In Oden v. Chemung County Indus. Dev. Agency,⁹ decided in 1995, the Court of Appeals held that in order for a defendant to be entitled to a set-off, a collateral source payment must correspond to a particular category of loss for which the jury awarded damages. In Oden the plaintiff, an injured ironworker, was entitled to receive $141,330 in disability retirement benefits over his lifetime. The defense argued that this amount should be applied to all the awards for future economic loss, which would largely have eliminated those awards.

The plaintiff, however, argued that collateral source reductions should be allowed only in those categories of economic loss that corresponded to analogous collateral source payments. The Court of Appeals agreed, reasoning that as a statute in derogation of common law, CPLR § 4545(c) was to be strictly construed. The Court held that at most, the disability retirement benefits could be set off against the plaintiff’s award for lost ordinary pension benefits, in the amount of $66,000. They could not, however, be applied to other categories of economic loss such as lost earnings or medical expenses, since they had not been shown to “replace” those categories of loss.

As a reason why the retirement benefits did not necessarily correspond to lost earnings, the Court pointed out that notwithstanding his retirement as an ironworker, the plaintiff could still have earned income from other employment without the loss of his disability retirement pension benefits.

Whether, in a given case, the necessary correspondence is present is, according to Oden, a matter of “proof and factual analysis.” The Court indicated that the “necessary linkage” could be established by requesting a detailed itemization of damage awards under CPLR § 4111(f).

Pension Benefits

Subsequent to Oden, the courts have typically declined to reduce awards for lost earnings by pension or retirement benefits, holding that while an award for lost pension benefits is properly reduced by disability pension benefits, an award of lost earnings is not.10 Indeed, the Court of Appeals itself, in its 2002 decision in Fisher v. Qualico Contracting Corp.,¹¹ reaffirmed its holding in Oden that an individual’s retirement pension benefits, paid in lieu of ordinary pension benefits, could not be set off against an award for lost future earnings, since the benefits did not replace, duplicate or correspond to lost earnings.

The appropriate focus, however, should be on the function that a particular collateral source payment serves and the requirements for its receipt, rather than the particular title or description given to it. If “direct correspondence” between a lost earnings award and a collateral source payment described as a “disability pension” or the like can be established, then a set-off should be allowed.

Possible support for such an argument is provided by Abar v. Freightliner Corp.¹² There, the Supreme Court reduced an award for past lost earnings by the amount of a lump-sum payment the plaintiff received from the New York State Teamsters Conference Pension and Retirement Fund, representing retroactive disability pension payments. The plaintiff argued that this was improper, since the payment constituted a pension benefit which did not replace or indemnify past earnings. The Appellate Division held that the set-off was properly allowed, stating “our review of Abar’s pension and benefit plan leads us to conclude that the payment he received was a collateral source as it replaced or indemnified’ Abar’s past lost earnings.” In particular, Abar would not have received the payment unless he was disabled and was receiving Social Security disability benefits; no additional contributions were required to be made on his behalf for him to receive the benefit payment; and the benefit payment did not reduce the amount of his retirement pension.

While Abar was decided prior to Oden, Abar has never been overruled and is fully consistent with Oden. The payment received by the plaintiff “replaced or indemnified” his lost earnings, thereby establishing the necessary “correspondence” with the award for lost earnings required by Oden.

Similarly, in Iazzetti v. City of New York,¹³ decided in 1998, the Appellate Division found a direct correspondence between an injured sanitation worker’s three-quarters disability pension and the jury’s award for lost earnings and pension benefits.¹⁴ That same year, however, in Gonzalez v. Iocovello,¹⁵ a different panel of the First Department, citing Oden, held that the defendant’s motion to reduce an award for lost earnings by the amount of an injured police officer’s accident disability pension was properly denied. The reason was that the defendant failed to demonstrate, “with reasonable certainty,” that the accident retirement benefits would replace the award.

Subsequently, in Terranova v. New York City Transit Authority,¹⁶ the trial court allowed the defendant an opportunity to establish the necessary correspondence between an accident disability pension and an award of lost earnings, but then concluded, after a hearing, that the defendant had failed to meet its burden with “reasonable certainty.” Accordingly, the court declined to reduce an award for lost earnings by the amount of a three-quarters disability pension received by a fireman injured in the line of duty. The court, however, suggested that one means of establishing such direct correspondence would be to review the legislative history and examine the legislative intent in the creation of the Fire Department accident disability pension benefit.

Property Damage - Insurance Proceeds

In the Fisher case noted above, the plaintiff’s home was destroyed by fire, and an issue arose as to how the proceeds from the plaintiff’s homeowner’s insurance policy should be set off against the verdict. The Appellate Division found that the plaintiff was entitled to damages for the lesser of the decline in market value or the restoration cost. The Court of Appeals affirmed and held that the insurance proceeds corresponded to the jury’s award for diminution in market value. This had the effect of eliminating the award, since the damages for diminution in market value were $480,000, compared to a restoration cost of $1,330,000, and the insurance paid $1,050,000.

Social Security Payments To Family Members

Social Security benefits paid to a plaintiff’s spouse and/or minor children17 potentially represent collateral source payments which can reduce an award for lost earnings, on the theory that the benefits replace the earnings and support which the injured plaintiff can no longer provide.

In Hayes v. Normandie, LLC,¹⁸ the trial court allowed a set-off where the plaintiff’s wife received Social Security payments “as a direct result of her husband’s lost wages.” The court also allowed a set-off for Social Security Disability payments to the plaintiff’s son, even though the son was not a party to the action, since the benefits he received were intended to replace the lost earnings caused by his father’s disability. Thus, the plaintiff’s award for future lost earnings would be reduced by future Social Security benefit payments to his son until the son’s majority, emancipation or death, whichever came first.

The Appellate Division agreed that “the Social Security payments received by plaintiff and his family members were intended to compensate for lost earnings and thus [were] properly treated as collateral source payments” (citation omitted). The Appellate Division, however, relied on Oden to hold that the defendant was not entitled to a set-off for pension benefits.

The “Reasonable Certainty” Requirement

Proving past collateral source payments is relatively easy and can be done through Social Security, Workers’ Compensation or insurance records; indeed, in many cases the parties stipulate to set-offs for past collateral source reimbursement, thereby obviating the need for a “collateral source hearing” on this issue. In order to be entitled to a set-off for future benefits, however, the defendant must prove that they are “reasonably certain” to continue. Satisfying this requirement may be more problematic, since the language “reasonably certain” has been interpreted as meaning “highly probable,” so as to require proof by “clear and convincing” evidence.

Future Social Security Benefits

Plaintiffs sometimes argue that it is not “reasonably certain” that Social Security benefits will continue into the future, since the Social Security Administration is already operating at a deficit, and the criteria for the receipt of benefits may change. To date, however, the courts have allowed set-offs for future benefits, provided the defendant can project the amount with the requisite “reasonable certainty.”

Two of the leading cases in this regard are Caruso v. Russell P. LeFrois Builders, Inc.,¹⁹ and Bryant v. New York City Health & Hospitals Corporation.²⁰ In Caruso, the Appellate Division reasoned that not to allow a set-off for future benefits would actually be contrary to the statute, since the legislative history of CPLR § 4545 specifically identifies Social Security disability benefits as one example of future payments that are intended to be included within the scope of the statute.

In Bryant, the plaintiffs argued that Social Security survivor benefits, to be paid in the future, should not be considered collateral source reimbursement because they are not received pursuant to a “contract or other enforceable agreement.” The Court of Appeals rejected this argument, reasoning that such an interpretation “would categorically read Social Security out of the statute as a potential source for offsetting future recovery,” even though the statute explicitly refers to Social Security as an example of a collateral source.

The Court concluded that “a more reasonable interpretation of the statute,” which would give effect to both the words and the intent of the Legislature, would be that Social Security benefits can be used to offset future losses provided that “with reasonable certainty” they will indemnify the plaintiff. Application of the “contract or otherwise enforceable agreement” requirement was limited to situations where the plaintiff did not have a protected interest in a government entitlement.

Once it is established that future Social Security benefits are “reasonably certain” to continue – i.e., according to the expert testimony at trial the plaintiff is totally disabled and his condition is permanent²¹– it is necessary to establish the amount. This is typically accomplished through expert testimony, based on the plaintiff’s current benefits and the “cost of living” adjustments used by the Social Security Administration. Using the cost of living adjustments, an expert economist can project the total disability benefits that the plaintiff will be entitled to receive until he becomes eligible for retirement benefits, which are not treated as collateral source payments with respect to a lost earnings award.

Private Medical Insurance

At least one court has held that insurance benefits provided through the plaintiff’s employer are not “reasonably certain” to continue, since the plaintiff may be laid off or simply decide to change jobs. In Giventer v. Rementeria,²² where the infant plaintiff sustained severe brain damage at birth, the trial court rejected the defendants’ argument that future benefits from the mother’s employee health insurance plan should be set off against the jury’s award for future medical expenses. The court reasoned that if, for example, the mother lost her job or the employer or insurance company changed benefits, the loss of coverage would be beyond her control.

Likewise, to allow set-offs for future payments would require the mother to remain at her existing position, even if she wanted to change jobs. The court reasoned that Mrs. Giventer had a right to change jobs or stop working altogether, and that to treat her employee health insurance as a collateral source would require her to work in order to provide her son with the care which he required, and which the jury had found that the defendants were obligated to provide.

Alternatively, the defendants argued that the plaintiffs should be required to enroll in a managed health care plan where the defendants would pay the premiums. The court rejected this argument as well, pointing out that an HMO might or might not approve home nursing care as opposed to care in a residential institution, whereas the jury’s award would permit plaintiff and his parents to obtain the care they chose, without any of the constraints which accompany managed care. Because of potential limitations such as pre-approval, an HMO would not “replace” what the jury awarded and therefore could not be considered a collateral source.

The result in Giventer does not mean that private insurance payments can never be set off against an award for future medical expenses. Cases where a plaintiff belongs to an HMO or purchases private health insurance and maintains it at his or her own expense are distinguishable from Giventer. If the plaintiff continued to pay premiums and maintained an insurance policy after being injured, there is a strong argument that the plaintiff is “reasonably certain” to receive insurance benefits in the future. Certainly the statute contemplates future medical insurance payments as collateral source reimbursement, since it provides that the set-off will be reduced by “an amount equal to the projected future cost to the plaintiff of maintaining such benefits.”

The Lien Problem

CPLR § 4545 excludes those collateral sources “entitled by law to liens against any recovery of the plaintiff.” Thus, although the statute refers to Workers’ Compensation as an example of collateral source reimbursement, the defendant will not be entitled to a set-off if a Workers’ Compensation lien has been asserted. The collateral source rule is similarly inapplicable where there is a Medicaid or Department of Social Services lien.

An issue that frequently arises with respect to medical insurance payments is whether the insurer can assert a lien or recover the payments under a theory of equitable subrogation. Indeed, health insurers have sometimes gone so far as to attempt to intervene in an action to recover the benefits paid.

The seminal case from the Court of Appeals regarding an insurer’s intervention in a personal injury action is Teichman v. Community Hospital of Western Suffolk,²³ which was decided in 1996. In Teichman, the parties settled a medical malpractice action on behalf of the infant plaintiff. The plaintiff’s health insurer, MetLife, sought to intervene in the action to recover the monies it had expended on behalf of the infant. The Court of Appeals held that intervention was proper in order to allow MetLife to attempt to recoup covered medical payments, if any, that were paid to plaintiffs as part of the settlement.

Because Teichman involved a settlement, the Court of Appeals held that CPLR § 4545 was inapplicable and did not reach the issue of whether it would bar an insurer’s claim to reimbursement from the proceeds of a verdict awarding damages for medical expenses. Subsequent cases, however, suggest that an insurer has a right to subrogation in such circumstances.

In Fisher, where the plaintiff’s homeowner’s insurance completely offset the jury’s award for diminution in market value after the plaintiff’s home was destroyed by fire, the Court commented that “a defendant may still be held responsible in subrogation to the homeowner’s insurer, as apparently was the case here.”

Two years later, in its 2004 decision in Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris USA Incorporated,²⁴ the Court again indicated that a defendant could potentially be held liable in subrogation to a plaintiff’s health insurer. In Blue Cross, several health insurers alleged that the defendant tobacco companies engaged in deceptive practices designed to mislead the public regarding the dangers of cigarette smoking. The United States Court of Appeals for the Second Circuit certified a question as to whether the insurers’ claims for the costs of services they had provided to their subscribers were too remote to permit recovery under § 349 of the General Business Law. While the New York Court of Appeals answered the certified question in the affirmative, holding that the insurers were not entitled to recover under the General Business Law, it rejected their argument that this, together with CPLR § 4545(c), would immunize the tobacco companies from liability. Reaffirming its statement in Fisher, the Court held that the collateral source rule did not alter the insurers’ traditional remedy because the tobacco companies could still be held responsible in subrogation – although it might be difficult if not impossible for the insurers to prove a subrogation action, since they would have to establish the elements of each subscriber’s claim.

Citing both Fisher and Blue Cross, the trial court in Principe v. City of New York,²⁵ in a decision in 2006, denied the plaintiff’s motion “to extinguish ‘the purported liens and/or subrogation rights’” asserted by the plaintiff’s health insurer. The court phrased the issue as “whether New York’s collateral source rule. . . operates to negate the health insurer’s right of subrogation,” and concluded that it did not do so – particularly where a claim for contractual, as opposed to equitable subrogation – was concerned. The court reasoned that to hold otherwise would be inconsistent with Blue Cross, Fisher, and Teichman.

The practical effect of these decisions appears to be that while a plaintiff may not recover damages that have been reimbursed by insurance, that does not preclude the plaintiff’s health or property damage insurer from seeking recovery in subrogation from the defendant and/or its insurer.

While the focus of the more recent cases, at least, appears to be on the health insurers’ potential recovery from the defendant, plaintiffs are not necessarily immune from subrogation claims, particularly in the context of settlements. CPLR § 4545 does not apply to settlements, and the Court of Appeals in Teichman allowed intervention after the action had been settled. If the insurer in such a case prevailed in its attempts to recoup covered medical payments, the plaintiff’s recovery would be reduced accordingly. It is therefore essential for plaintiffs’ counsel to ensure that a settlement is fashioned in such a way as to make it clear that the settlement does not include recovery for reimbursed medical expenses.²⁶

Must The Plaintiff Actually Be Receiving Benefits?

A final issue concerns “entitlement”, as opposed to “receipt,” of benefits. In Young v. Tops Markets, Inc.,²⁷ the plaintiff, although fully disabled from working, had not applied for Social Security disability benefits. The defendants, arguing that the plaintiff would be awarded benefits if he were to apply, sought a set-off for the projected amount of the disability benefits to which he would be entitled. A divided panel at the Appellate Division, Fourth Department denied the application, holding that the plaintiff, who had never applied for Social Security benefits, was not “legally entitled” to their “continued receipt.”

The two dissenting justices considered the requirement of an actual award of benefits inconsistent with Bryant’s recognition of future Social Security benefits as collateral source reimbursement, and the legislative history of CPLR § 4545. They would have ordered a hearing to determine both the plaintiff’s eligibility for benefits and the amount of benefits he would be entitled to receive.

The practical effect of the majority’s holding in Young is to enable a plaintiff to obtain a windfall recovery by not applying for disability benefits until after judgment has been entered in his favor. Once the judgment has been entered the plaintiff is free to apply for both retroactive and future benefits – benefits which would have been set off against the verdict under CPLR § 4545 had the plaintiff applied for them in advance of the trial! Such a result appears to be at odds with the intent and purpose of the statute.

Young was decided in 2001. To date, the other Departments of the Appellate Division have not specifically addressed the issue, and it remains to be seen whether they will follow Young, or how the Court of Appeals will rule if and when the issue reaches the highest Court. Given the legislative history, however, a strong argument can be made that if the defendant can establish both “entitlement” to benefits, in the sense of the plaintiff’s total disability, and “reasonable certainty” as to the amount of benefits that the plaintiff would receive if he were to apply, a set-off should be allowed. “Reasonable certainty” in this context could be established by offering medical testimony as to the permanency of the disability, together with evidence – perhaps from a representative of the Social Security Administration – that if the plaintiff were to apply he would awarded benefits, together with economic testimony projecting the amount of benefits based on the plaintiff’s earnings before the injury.

Conclusion

In sum, the application of CPLR § 4545 is fraught with pitfalls for the unwary. Unresolved issues include the questions of whether and under what circumstances a defendant can demonstrate “direct correspondence” between an accidental disability pension and an award of lost earnings; the interplay between CPLR § 4545 and an insurer’s subrogation rights; and whether other Departments of the Appellate Division or the Court of Appeals will follow Young. Further developments regarding these and other issues concerning the collateral source rule will bear careful watching by both sides in a personal injury action.

1. See Governor's Program Mem., L. 1986, ch. 220, 1986 N.Y. Legis. Ann., at 135-136.

2. Subdivisions (a) and (c) state in pertinent part as follows:

. . .evidence shall be admissible for consideration by the court to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source such as insurance (except for life insurance), social security (except for those benefits provided under title XVIII of the social security act), workers’ compensation or employee benefit programs (except such collateral sources entitled by law to liens against any recovery of the plaintiff). If the court finds that any such cost or expense was or will, with reasonable certainty, be replaced or indemnified from any collateral source, it shall reduce the amount of the award by such finding, minus an amount equal to the premiums paid by the plaintiff for such benefits for the two-year period immediately preceding the accrual of such action and minus an amount equal to the projected future cost to the plaintiff of maintaining such benefits. In order to find that any future cost or expense will, with reasonable certainty, be replaced or indemnified by any collateral source, the court must find that the plaintiff is legally entitled to the continued receipt of such collateral source, pursuant to a contract or otherwise enforceable agreement, subject only to the continued payment of a premium and such other financial obligations as may be required by such agreement.

3. CPLR § 4545(b) provides in pertinent part as follows:

In any action against a public employer or a public employee who is subject to indemnification by a public employer with respect to such action or both for personal injury or wrongful death arising out of an injury sustained by a public employee while acting within the scope of his public employment or duties, where the plaintiff seeks to recover for the cost of medical care, custodial care or rehabilitation services, loss of earnings or other economic loss, evidence shall be admissible. . .to establish that any such cost or expense was replaced or indemnified. . .from a collateral source provided or paid for, in whole or in part, by the public employer, including but not limited to paid sick leave, medical benefits, death benefits, dependent benefits, a disability retirement allowance and social security. . . .If the court finds that any such cost or expense was replaced or indemnified from any such collateral source, it shall reduce the amount of the award by such finding, minus an amount equal to the contribution of the injured public employee for such benefit.

The Court of Appeals, in Iazzetti v. City of New York, 94 N.Y.2d 183, 701 N.Y.S.2d 332, 723 N.E.2d 81 (1999), held that subdivision (b), not subdivision (c), applies to actions brought by public employees against their employers; and that the Legislature did not repeal subdivision (b) by implication when it enacted subdivision (c), applicable to all personal injury and wrongful death actions. Accordingly, in an action brought by a public employee, a public employer such as the City of New York is not entitled to collateral source reductions for future damages.

4. Bongiovanni v. Staten Island Medical Group P.C., 188 Misc.2d 362, 366-367, 728 N.Y.S.2d 345 (Sup. Ct., Richmond Co. 2001).

5. See also Loperena v. City of New York, 2002 WL 31163423 (Sup. Ct., N.Y. Co. 2002).

6. Wooten v. State, 302 A.D.2d 70, 753 N.Y.S.2d 266 (4th Dep’t 2002).

7. See also Woods v. Kurz, 258 A.D.2d 932, 685 N.Y.S.2d 361 (4th Dep’t., 1999); Ferrara v. Bronx House, Inc., 163 Misc.2d 908, 622 N.Y.S.2d 864 (N.Y. City Civ. Ct., 1994).

8. See Ventriglio v. Active Airport Serv., 257 A.D.2d 657, 682 N.Y.S.2d 915 (2nd Dep’t., 1999).

9. Oden v. Chemung County Indus. Development Agency, 87 N.Y.2d 81, 637 N.Y.S.2d 670, 661 N.E.2d 142 (1995).

10. See, e.g., Hayes v. Normandie, LLC, 306 A.D.2d 133, 761 N.Y.S.2d 645 (1st Dep’t. 2003); Boshnakov v. Board of Education, 277 A.D.2d 996, 716 N.Y.S.2d 520 (4th Dep’t. 2000).

11. Fisher v. Qualico Contracting Corp., 98 N.Y.2d 534, 749 N.Y.S.2d 467, 779 N.E.2d 178 (2002).

12. Abar v. Freightliner Corp., 208 A.D.2d 999, 617 N.Y.S.2d 209 (3rd Dep’t. 1994).

13. Iazzetti v. City of New York, 256 A.D.2d 140, 681 N.Y.S.2d 507 (1st Dept. 1998).

14. The Court of Appeals, in Iazzetti v. City of New York, 94 N.Y.2d 183, 701 N.Y.S.2d 332, 723 N.E.2d 81 (1999), did not reach this issue.

15. Gonzalez v. Iocovello, 249 A.D.2d 143, 672 N.Y.S.2d 293 (1st Dep’t. 1998).

16. Terranova v. New York City Transit Authority, 11 Misc.3d 214, 805 N.Y.S.2d 518 (Sup. Ct., Richmond County 2005).

17. Minor children are entitled to such benefits until they reach the age of 18, unless they are attending college, in which case the benefits continue until the age of 19.

18. Hayes v. Normandie, LLC, 2002 WL 1748675(Sup. Ct., N.Y. County 2002) aff’d as modified 306 A.D.2d 133, 761 N.Y.S.2d 645 (1st Dep’t., 2003).

19. Caruso v. Russell P. LeFrois Builders, Inc., 217 A.D.2d 256, 635 N.Y.S.2d 367 (4th Dep’t. 1995).

20. Bryant v. New York City Health and Hospitals Corp., 93 N.Y.2d 592, 604, 695 N.Y.S.2d 39, 716 N.E.2d 1084 (1999).

21. Cf. Schifelbine v. Foster Wheeler Corporation, 3 Misc.3d 151, 776 N.Y.S.2d 146 (Sup. Ct., Allegany County 2002), aff’d as modified 4 A.D.3d 736 (4th Dep’t., 2004).

22. Giventer ex rel. Giventer v. Rementeria, 184 Misc.2d 744, 705 N.Y.S.2d 863 (Sup. Ct., Richmond County 2000).

23. Teichman by Teichman v. Community Hosp. of Western Suffolk, 87 N.Y.2d 514, 640 N.Y.S.2d 472, 663 N.E.2d 628 (1996).

24. Blue Cross and Blue Shield of N.J., Inc. v. Philip Morris USA Inc., 3 N.Y.3d 200, 785 N.Y.S.2d 399, 818 N.E.2d 1140 (2004).

25. Principe v. City of New York, 11 Misc.3d 879, 813 N.Y.S.2d 872 (Sup. Ct., Richmond County 2006).

26. Examples of how this may be accomplished are provided by Singh v. Long Island Jewish Medical Center, 11 Misc.3d 1054(A), 815 N.Y.S.2d 496 (Sup. Ct., Queens County 2006), and Del Rossi v. Defendant V, 6 Misc.3d 454, 724 N.Y.S.2d 921 (Sup. Ct., Suffolk County 2004).