Kish v. Board of Educ. of City of New York

• Decision Date: 28 June 1990
• Citation: 76 N.Y.2d 379,559 N.Y.S.2d 687,558 N.E.2d 1159
• Parties: , 558 N.E.2d 1159, 62 Ed. Law Rep. 692 Alice KISH et al., Appellants, v. BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 687

559 N.Y.S.2d 687

76 N.Y.2d 379, 558 N.E.2d 1159, 62

Ed. Law Rep. 692

Alice KISH et al., Appellants, v. BOARD OF EDUCATION OF the CITY OF NEW YORK et al., Respondents.

Court of Appeals of New York.

June 28, 1990.

Robert J. Bohner, Rego Park, for appellants.

Victor A. Kovner, Corp. Counsel (Jean Brandon and Ellen B. Fishman, New York City, of counsel), for respondents.

OPINION OF THE COURT

HANCOCK, Judge.

In a personal injury case involving a claim of lost, past and future earnings resulting from an alleged permanent disability from work, evidence that the plaintiff voluntarily chose to retire is often so prejudicial as to be inadmissible; it may be allowed, however, in the court's discretion in limited circumstances, where it has significant probative value with respect to a validly raised question about the plaintiff's malingering or motivation for not working. Under the particular circumstances here, the trial court did not abuse its discretion in allowing relevant proof of plaintiff's retirement and, therefore, the order of the Appellate Division should be affirmed. 140 A.D.2d 1009, 529 N.Y.S.2d 928.

I

On April 26, 1978, plaintiff, then 50 years of age and employed by defendant Board of Education as a teacher, fell in a school auditorium and injured her knee. In the jury trial of her negligence action against defendants--which took place eight years later and consumed 13 trial days over a three-week period--the issues of liability and damages were vigorously disputed. On cross-examination of plaintiff and her witnesses, as well as on summation, defense counsel raised questions concerning where, how and why plaintiff fell and whether the Board of Education had received notice of the claimed defect. Defense counsel cast doubt on plaintiff's credibility by, among other things, showing inconsistencies between her trial and pretrial testimony about the location of the alleged defect in the auditorium and the length of time prior to the accident that plaintiff had not attended assemblies there. At the close of the evidence, the trial court submitted the issue of defendants' negligence to the jury, and in a special verdict, the jury found unanimously that defendants were not responsible.

Prior to the opening of trial, on plaintiff's motion in limine to preclude any evidence of her receipt of benefits as barred by the collateral source rule, the trial court ordered defense counsel to refrain from "any reference to any benefits [plaintiff] may have received [emphasis added]". In her opening, defense counsel stated, among other things, that "Mrs. Kish is going to try to convince you that the reason that she hasn't been able to work is because of that sprained knee and the supposed negligence of the City. I think what the evidence is going to show you is that Mrs. Kish has preferred not to look for any work."

In support of her claim for lost earnings, plaintiff submitted evidence that she was totally and permanently disabled from the knee injury and the psychological effect of the accident. Throughout the trial, defendants disputed the nature and extent of the impairment to plaintiff's knee and questioned whether the impairment was related to the accident rather than to a previously existing condition. The defense offered proof that, contrary to plaintiff's testimony, she was not in good health at the time of her injury and that she had received treatment for various ailments on over 30 occasions in the months immediately preceding the accident. In particular, defendants contested the claim that the knee injury and the ensuing emotional problems were so disabling as to prevent her from accepting gainful employment.

During the trial, evidence was adduced suggesting that plaintiff's emotional difficulties were the result of the health problems of her husband and her son rather than her knee injury. As evidence of the contention that plaintiff could have worked had she desired to do so, defense counsel presented testimony of an expert in vocational rehabilitation who testified concerning the availability of jobs for someone with plaintiff's disability. In addition, an administrator from the medical bureau of the Board of Education described the various accommodations in working conditions that could be made to enable a teacher with a physical disability such as plaintiff's to resume employment. Moreover, plaintiff's own psychologist stated that returning to work would benefit plaintiff psychologically and that "eventually she probably could" return to work.

The issue concerning plaintiff's retirement arose when defense counsel was permitted, over objection, to develop in cross-examining plaintiff that she had retired approximately one year and eight months after the accident. The court denied plaintiff's ensuing motion for a mistrial. In dismissing the argument that defense counsel, by asking about retirement, had violated its in limine order and the collateral source rule of Healy v. Rennert, 9 N.Y.2d 202, 205-208, 213 N.Y.S.2d 44, 173 N.E.2d 777, the court stated to plaintiff's attorney, "[C]ounselor, I am familiar with the collateral source rule and it has not been violated in this case." (Emphasis added.)

Except for a single unsolicited reference made by a defense witness to the amount of plaintiff's pension, the court's in limine ruling precluding any mention of benefits received by plaintiff was not violated. The court immediately struck the defense witness's gratuitous statement as to plaintiff's pension and gave the jury an appropriate instruction to disregard it. Plaintiff's counsel made no objection to this instruction and requested no further instruction pertaining to the question of plaintiff's retirement, then or at any other time. In its final instructions to the jury, the court used the exact words requested by plaintiff: "In considering the amount of money which the plaintiff has lost by reason of her inability to work there is no evidence in this case that plaintiff is receiving any moneys from any outside source and you are not to consider or speculate about any such sums in deliberating on lost income."

Plaintiff took no exception to the charge and does not raise one on appeal. She does argue, however, that the court's admission of proof of her disability retirement was so prejudicial as to have inevitably influenced the jury's verdict.

The Appellate Division unanimously affirmed, without opinion. We now affirm.

II

Plaintiff's primary contention on appeal is that the trial court, in permitting proof of plaintiff's retirement, acted in contravention of the collateral source rule established in Healy v. Rennert (supra). We disagree. In Healy, the court held that it was error to permit the defendant to show that, as a result of injuries sustained in the accident, plaintiff, a New York City fireman, could retire at three quarters of his regular salary. Our holding was based on the potential prejudice of that proof--i.e., that evidence of "the acceleration and increase in the amount of payments of plaintiff's pension" might unduly affect the outcome of the case, influencing the jury to reach a verdict based upon a belief that the plaintiff was "not harmed rather than on questions of negligence and contributory negligence." (9 N.Y.2d, at 207, 213 N.Y.S.2d 44, 173 N.E.2d 777 [emphasis added].) Similarly, we held that it was improper to permit the defendant to show collateral source payments from plaintiff's membership in a health insurance plan, relying on the rule prevailing in most jurisdictions that "the damages recoverable for a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for his loss by insurance effected by him and to...