WeSueThem in federal, state, and local courts, protecting YOU every step of the way.

LAW | CONSUMER RIGHTS | PRODUCT LIABILITY | EMPLOYMENT RIGHTS | PERSONAL INJURY

WeSueThem Blog

4-8 MINUTE READ

Loss of Earnings

4 MINUTE READ


WeSueThem.com

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.”

Thoughts

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.

ARTICLE

WeSueThem.com

Privacy Policy

This privacy policy applies to information collected online from users of this website. In this policy, you can learn what kind of information we collect, when and how we might use that information, how we protect the information, and the choices you have with respect to your personal information.

What personal information is collected through this website and how is it used?

We collect information about our users in three ways: directly from the user, from our Web server logs and through cookies. We use the information primarily to provide you with a personalized Internet experience that delivers the information, resources, and services that are most relevant and helpful to you. We don’t share any of the information you provide with others, unless we say so in this Privacy Policy, or when we believe in good faith that the law requires it. 

User-supplied information: If you fill out the “contact” form on this website, we will ask you to provide some personal information (such as e-mail address, name, phone number and state). We only require that you provide an e-mail address on the contact form. Further, if chat is available through this site, you may be asked to provide information if you participate in an online chat. Please do not submit any confidential, proprietary or sensitive personally identifiable information (e.g. Social Security Number; date of birth; drivers license number; or credit card, bank account or other financial information) (collectively, “Sensitive Information”). If you submit any Sensitive Information, you do so at your own risk and we will not be liable to you or responsible for consequences of your submission. Information that you provide to us through the contact form or an online chat will be used so that we may respond to your inquiry. We may also use information you provide to us to communicate with you in the future. If you do not wish to receive such communications, you may opt out (unsubscribe) as described below. 

Web server logs: When you visit our website, we may track information about your visit and store that information in web server logs, which are records of the activities on our sites. The servers automatically capture and save the information electronically. Examples of the information we may collect include:

  • your unique Internet protocol address;
  • the name of your unique Internet service provider;
  • the town/city, county/state and country from which you access our website;
  • the kind of browser or computer you use;
  • the number of links you click within the site;
  • the date and time of your visit;
  • the web page from which you arrived to our site;
  • the pages you viewed on the site; and
  • certain searches/queries that you conducted via our website(s).

The information we collect in web server logs helps us administer the site, analyze its usage, protect the website and its content from inappropriate use and improve the user’s experience. 

Cookies: In order to offer and provide a customized and personal service, our websites and applications may use cookies and similar technologies to store and help track information about you. Cookies are simply small pieces of data that are sent to your browser from a Web server and stored on your computer’s hard drive. We use cookies to help remind us who you are and to help you navigate our sites during your visits. Cookies also can tell us where visitors go on a website and allow us to save preferences for you so you won’t have to re-enter them each time you visit. The use of cookies is relatively standard. Most Internet browsers are initially set up to accept cookies, but you can use your browser to either notify you when you receive a cookie or to disable cookies. If you wish to disable cookies from this site, you can do so using your browser. You should understand that some features of many sites may not function properly if you don’t accept cookies. For more information about using browsers to manage cookies, please see All About Cookies. You can also refuse to accept Flash cookies from this website using Adobe’s Flash management tools. You can opt out of Google’s use of cookies by visiting Google’s Ad Settings. By visiting this website, you consent to the use of cookies and similar technologies in accordance with this Privacy Statement. 

Third-party Services: We may use services hosted by third parties, including Adobe Site Catalyst, to assist in providing our services and to help us understand the use of our site by our visitors. These services may collect information sent by your browser as part of a web page request, including your IP address or cookies. If these third-party services collect information, they do so anonymously and in the aggregate to provide information helpful to us such as website trends, without identifying individual visitors. In addition, we may use services provided by third parties to display relevant content, products, services and advertising to you. These third parties may use cookies, web beacons and similar technologies to collect or receive information from this website and elsewhere on the internet. They may then use that information to provide measurement services so we can understand your interests and retarget advertisements based on your previous visits to this website. Please keep in mind that we do not share your personal information with any third-party advertiser, ad server or ad network. You may be able to opt-out of the collection and use of information for ad targeting by some third parties by visiting www.aboutads.info/choices. You can opt out of Google’s use of cookies by visiting Google’s Ad Settings. You can visit this page to opt out of AdRoll’s and their partners’ targeted advertising. Please see “Cookies” in the section above for more information on how you can control the use of cookies on your computer. 

California Do Not Track: Our web services do not alter, change, or respond upon receiving Do Not Track (DNT) requests or signals in browsers. As described in more detail above, we track user activity using web server logs, cookies and similar technologies. Information collected in web server logs helps us analyze website usage and improve the user’s experience. Cookies allow us to offer you a customized experience and present relevant advertising to you.

How is personal information protected?

We take certain appropriate security measures to help protect your personal information from accidental loss and from unauthorized access, use or disclosure. However, we cannot guarantee that unauthorized persons will always be unable to defeat our security measures.

Who has access to the information?

We will not sell, rent, or lease mailing lists or other user data to others, and we will not make your personal information available to any unaffiliated parties, except as follows:

  • to agents, website vendors and/or contractors who may use it on our behalf or in connection with their relationship with us;
  • if we are unable to assist with your matter, but know an unaffiliated attorney or firm that may be able to help you, we may refer you and share information you provided us with that party; and
  • as required by law, in a matter of public safety or policy, as needed in connection with the transfer of our business assets (for example, if we are acquired by another firm or if we are liquidated during bankruptcy proceedings), or if we believe in good faith that sharing the data is necessary to protect our rights or property.

How can I correct, amend or delete my personal information and/or opt out of future communications?

You may opt out of any future contacts from us at any time. Contact us via the phone number, contact form or mailing address on our website at any time to:

  • see what data we have about you, if any;
  • change/correct any data we have about you;
  • ask us to delete any data we have about you; and/or
  • opt out of future communications from us.

If you have any additional questions or concerns about this privacy policy, please contact us via the phone number, contact form or mailing address listed on this website. If our information practices change in a significant way, we will post the policy changes here.

Contact Us

The Muhlstock Law Firm

WeSueThem.com

Attention: Compliance Department

35 Pinelawn Road

Suite 105E

Melville, NY 11747