District Court of Nassau County, First District, May 10, 2019

Thomas Torto, New York City, for defendant.

The Russell Friedman Law Group, LLP, Lake Success, for plaintiffs.

Before the court is defendant's motion for an order awarding it summary judgment pursuant to CPLR 3212 dismissing the complaint. Although defendant in its answer also asserts a counterclaim for return of money it previously paid to plaintiff Yan Moshe, no relief is sought regarding said counterclaim. Also before the court is plaintiffs' cross motion for summary judgment in their favor. For the reasons stated herein, the motion and cross motion are both denied.

Summary judgment is drastic relief, as it denies one party the opportunity to go to trial. Thus, summary judgment should only be granted where there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361 [1974]). The focus for the court is on issue finding, not issue determining (see Hantz v Fishman, 155 AD2d 415 [2d Dept 1989]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence in admissible form to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party [*2]opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

By order dated July 16, 2018, this court, in deciding a certain disclosure related dispute (Moshe v Country-Wide Ins. Co., 60 Misc 3d 923 [2018]), described the circumstances underlying this action as follows:

"Plaintiffs bring this plenary action to recover the sum of $10,906.14, said sum being the balance of{**64 Misc 3d at 435} monies claimed due as loss of earnings 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 of which Moshe is the owner.

"There is no dispute that pursuant to the relevant provisions governing EUOs involving a first-party no-fault insurance claim(s) the deponent is entitled to 'loss of earnings' caused by attendance at the EUO (11 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 that Moshe claimed a loss of earnings of $12,186.14 (complaint ¶ 24). In support thereof, and as previously requested by Country-Wide's counsel (complaint ¶ 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 ¶ 24; defendant's exhibit D [tax return].) Despite demand for confirmation that full payment would be made at the conclusion of the deposition (complaint ¶ 24), Country-Wide neither committed to payment nor rejected same (complaint ¶ 26). Instead, following the EUO, on or about March 10, 2016, Country-Wide remitted $1,280 as its calculation of Moshe's loss of earnings (complaint ¶ 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)." (Id. at 924-925.)

In its answer defendant asserts a counterclaim for return of the $1,280 it paid to Moshe.

Initially, it is noted that there is no disagreement between the parties concerning the accuracy of the calculations that led to the two figures in the final quoted paragraph above. Comparing plaintiff's interrogatory responses 2, 6, 7, 8, 10, 11, 12 and 15 (exhibit D to cross motion) with defendant's interrogatory response 3 (exhibit E to cross motion) reveals an identical formula by the parties to determine the loss of earnings incurred as the result of Moshe's appearance at the EUO. The{**64 Misc 3d at 436} formula used by both parties presumed 250 work days per year to reach the figure for one day of lost earnings (52 weeks multiplied by five working days per week = 260 work days less 10 work days for vacation = 250 days). The parties then took their respective disputed earnings figure—either $320,000 (defendant's claim) or $320,000 plus $2,604,942 (plaintiffs' claim)—and divided it by 250 to reach their respective loss of earnings figure.

As defendant does not move for summary judgment on its counterclaim, the parties couch as the only issue to be decided whether or not any or all of the additional $2,604,942 claimed [*3]by plaintiff Moshe can be rightfully considered in their formula for calculation of lost earnings pursuant to 11 NYCRR 65-3.5 (e).

The within controversy—as portrayed in supporting and opposing papers—is perhaps best characterized as the difference between the broader term "loss of income" (essentially sought by plaintiffs) and the narrower term "loss of wages" (sought by defendant) in deciding which qualifies as "loss of earnings" within the meaning of 11 NYCRR 65-3.5 (e). In this regard, it is noted that none of the scheduling correspondence by counsel for either party settle the issue, but merely state that "loss of earnings" would be compensated as a result of Mr. Moshe's attendance at the EUO.^[FN*]

Counsel for plaintiffs argues that the additional sum of $2,604,942 in "[r]ental real estate, royalties, partnerships, S corporations, trusts, etc." should be included in the parties' formula used to calculate plaintiffs' claim for loss of earnings. In support, plaintiffs provide an affidavit by Moshe in which he states, in self-serving and conclusory fashion, that

"I was the owner of four different companies . . . As the president, I managed the day to day operations of each of these companies. As such, my presence and availability was a vital component to the daily operations and income generation for each business. Running these companies is what I did for a living." (Moshe aff in support ¶ 6.)

Plaintiff Moshe's attestations, however, do not demonstrate the consequences in earnings loss caused by his having been unavailable{**64 Misc 3d at 437} on November 10, 2015 (or whatever the actual period of time he was unavailable due to attendance at the EUO in question).

Conversely, counsel for defendant argues that any earnings above the $1,280 already paid to Moshe was "rental income [which] is passive and does not constitute 'loss of earnings' or wages" as same "would be paid regardless of whether he attended the EUO" (affirmation in reply ¶ 6). Counsel, however, provides nothing of probative value to establish his conclusion that Moshe's tax reporting of $2,604,942 in "[r]ental real estate, royalties, partnerships, S corporations, trusts, etc." was limited to rental income or that he did not lose rental income by being unavailable on November 10, 2015.

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.

As an issue of fact at the heart of the instant action remains unresolved, both defendant's motion and plaintiffs' cross motion for summary judgment are denied.