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Loss of Earnings



Moshe v Country-Wide Ins. Co., 2019 NY Slip Op 29138 (Dis. Ct. Nassau Co. 2019)

Introductory thoughts

I love this case. It makes little sense for many reasons. But what is perplexing is how much of the income of Moshe is active? He missed a day of work – what business opportunities were missed? What passive income was lost due to his not being at work? I really do not know how the heck you prove any of that without expert testimony (see below)

But in the prior motion sequence, the judge prevented Defendant from obtaining a deposition. As can be seen in this decision, a deposition is absolutely necessary to figure out how you get to the $12,000 figure. I would have appealed that decision and stayed the trial.

Because when you read this decision, how is Countiwide going to really defend this case except to argue that Plaintiff cannot prove its case? The EUO in the underlying case had to do with the facility, not how its owner gets paid per diem. So this case, to me, is a mess. Plaintiff’s theory of recovery is amorphous, C-wide failed to get an absolutely necessary deposition to figure out how it will defend this case and the trial will be unwieldy.

The relevant allegations

“Plaintiffs bring this plenary action to recover the sum of $10,906.14, said sum being the balance of monies claimed due as loss of earning for Moshe’s appearance at a November 10, 2015 examination under oath (EUO or deposition) taken in the context of a first-party no-fault insurance claim(s) submitted by Excel Surgery Center, LLC (Excel) of which Moshe is the owner.

There is no dispute that pursuant to the relevant provisions governing EUO’s involving first-party no-fault insurance claim(s) the deponent is entitled to ‘loss of earning’ caused by attendance at the EUO (22 NYCRR 65-3.5[e]).

As alleged in plaintiffs’ complaint, on or about November 6, 2015 — prior to the November 10, 2015 EUO — counsel for Excel advised counsel for Country-Wide Insurance Company (Country-Wide) that Moshe claimed a loss of earnings of $12,186.14 (Complaint at 24). In support thereof, and as previously requested by Country-Wide’s counsel (Complaint at 22), Excel’s counsel provided a redacted copy of Moshe’s 2014 joint Federal tax return which showed $320,000 in ‘Wages, salaries tips, etc.’ and an additional $2,604,942 in ‘Rental real estate, royalties, partnerships, S corporations, trusts, etc.’ (Complaint at 24; defendant’s exhibit D [tax return].) Despite demand for confirmation that full payment would be made at the conclusion of the deposition (Complaint at 24), Country-Wide neither committed to payment nor rejected same (Complaint at 26). Instead, following the EUO, on or about March 10, 2016 Country-Wide remitted $1,280.00 as its calculation of Moshe’s loss of earnings (Complaint at 36).

The within action was subsequently brought by plaintiffs seeking recovery of the difference between Moshe’s demand ($12,186.14) and Country-Wide’s payment ($1,280.00).”

The Court’s decision

“Consistent with the clear language of 11 NYCRR §65-3.5(e) and regardless of the formulaic manner in which the parties approach the calculation of lost earnings, the focus should be on the actual monetary loss incurred by reason of plaintiff’s attendance at the EUO. As defined by PJI 2:290, albeit in the context of personal injury, loss of earnings means “reduction in capacity to earn money”. That Moshe was entitled to payment of lost earnings caused by attendance at an EUO and not a physical injury is irrelevant to the meaning of the term and, hence, the method of calculation.

Movant and cross-movants fail to provide any particularity or evidence of what Moshe’s companies do, what was happening on November 10, 2015 or why Moshe’s unavailability for an undisclosed number of hours on that date caused earnings loss. Passivity alone is not the criteria – a day trader may be involved with purely passive assets but the inability to trade on a particular day may have consequences in monies lost that otherwise would not have been. Given the wholesale absence of relevant evidence supporting the parties’ respective claims, neither side has made the requisite prima facie showing.”


I think Plaintiff will need an expert economist to win. There is no way in this case that lay testimony can prove the amount of lost income within a reasonable certainty. In fact, had this been done in the beginning, this might have been a larger case. Alternatively, it could have been a smaller case. But without expert testimony, this case is just for the birds.