In this personal injury action, the jury returned a verdict on January 27, 2006 in favor of the plaintiff in the aggregate amount of $7,600,514.08, including an award of $1,126,779.00 for future loss of earnings (excluding plaintiff's pension) and award of $1,150,321.00 for plaintiff's future loss of pension.

Defendants Athena-Liberty Lofts, L.P. and Athena Construction Corp. now move for an order pursuant to CPLR §§ 4545(c) granting them a collateral source set off to plaintiff's loss of earnings award based on the plaintiff's purported entitlement to Social Security Disability benefits and/or granting a hearing to determine the amount of such benefits. See, generally, Bryant v. New York City Health & Hosps. Corp., 93 NY2d 592 (1999).

Defendant Seasons Contracting Corp. cross-moves for the same relief.

Plaintiff opposes defendants' motion and cross-motion on the ground that there is no basis for a collateral source set off since plaintiff has not applied for and does not receive any Social Security Disability benefits.

Alternatively, plaintiff cross-moves for an order pursuant to CPLR § 4404 granting him an additur on the issue of future lost wages and benefits should this Court determine that a collateral source hearing is required, because plaintiff is unable to work and thus entitled to Social Security disability benefits.

In Young v. Tops Markets, Inc., 283 AD2d 923, 926 (4th Dep't 2001), the Appellate Division, Fourth Department, held that the trial court "properly denied defendants' motion brought pursuant to CPLR 4545 (c) to reduce the future loss of earnings and benefits award by the amount [*2]of Social Security disability benefits to which plaintiff may be entitled but for which he has not applied".

Specifically, the Appellate Division, Fourth Department, found that

"CPLR 4545 (c) is a statute enacted in derogation of the common law and, as such, is to be strictly construed ... in the narrowest sense that its words and underlying purposes permit" (Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81, 86). That section provides that, "[i]n order to find that any future cost or expense will, with reasonable certainty, be replaced or indemnified by the 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." Having never applied for Social Security benefits, plaintiff is not "legally entitled" to their "continued receipt."

The defendants argue that this case does not constitute binding precedent on this Court, and urge this Court to follow the reasoning of the dissent in that case.

However, it is well settled that "[t]rial courts within this department must follow the determination of the Appellate Division in another department until such time as [the Appellate Division, First Department] or the Court of Appeals passes on the question (citations omitted)." People v. Shakur, 215 AD2d 184, 185 (1st Dep't 2005). See also, Mountain View Coach Lines v. Storms, 102 AD2d 663 (2nd Dep't 1984).

In the absence of any determination by the Appellate Division, First Department or the Court of Appeals to the contrary, this Court finds that it is bound by the holding of the majority in Young v. Tops Markets, Inc., supra. Therefore, this Court finds there is no basis to reduce the future loss of earnings award in this case by the amount of Social Security disability benefits for which plaintiff has not applied.

Accordingly, based on the papers submitted and the oral argument held on the record on May 3, 2006, defendants' motion and cross-motion for a collateral source set off to plaintiff's loss of earnings award and/or for a hearing to determine the amount of the Social Security disability benefits to which plaintiff might be entitled are denied. Consequently, the cross-motion by plaintiff to increase the award for future lost wages and benefits is denied as moot.

This constitutes the decision and order of this Court.

Date:_____________________________ [*3]

Barbara R. Kapnick

J.S.C.