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THE PROOF OF PLAINTIFF’S CLAIM FOR LOST EARNINGS WAS INSUFFICIENT AS A MATTER OF LAW, DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT IN THIS NO-FAULT CASE SHOULD HAVE BEEN GRANTED 3RD DEPT.

The Third Department, reversing Supreme Court, over a two-justice dissent, determined plaintiff’s evidence of lost earnings was insufficient to support his claim for no-fault benefits. The insurer’s motion for summary judgment should, therefore, have been granted. The dissenters argued that there was enough evidence of lost earnings to raise a question of fact:

… {The potential employer’s and] plaintiff’s subjective beliefs about the financial health of the parts business and/or their subjective beliefs about plaintiff’s skills are immaterial to the resolution of whether it is reasonable to project that the parts business would have employed plaintiff at a salary of $2,000 a week. In contrast, the uncontradicted evidence that the parts business was failing, that it had not made any efforts to acquire or open an automobile repair shop, and that, even if it had, plaintiff had a demonstrated history of being unable to run a profitable automobile repair shop all bear on the reasonableness of such a projection. That material evidence established as a matter of law that the projection that plaintiff would have received $2,000 a week from the parts business is unreasonable … . Freligh v Government Empls. Ins. Co., 2017 NY Slip Op 05911, 3rd Dept 7-27-17

INSURANCE LAW (NO-FAULT, LOST EARNINGS, THE PROOF OF PLAINTIFF’S CLAIM FOR LOST EARNINGS WAS INSUFFICIENT AS A MATTER OF LAW, DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT IN THIS NO-FAULT CASE SHOULD HAVE BEEN GRANTED 3RD DEPT)/NO-FAULT BENEFITS (LOST EARNINGS,  THE PROOF OF PLAINTIFF’S CLAIM FOR LOST EARNINGS WAS INSUFFICIENT AS A MATTER OF LAW, DEFENDANT INSURER’S MOTION FOR SUMMARY JUDGMENT IN THIS NO-FAULT CASE SHOULD HAVE BEEN GRANTED 3RD DEPT)

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