Tina Wooten, Individually and as Administrator of the Estate of James A. Wooten, Deceased, Respondent, v. State of New York, Appellant, 302 A.D.2d 70

OPINION OF THE COURT Hurlbutt, J. The central issue raised on this appeal is whether defendant’s application for a collateral source offset pursuant to CPLR 4545, couched as a motion to fix the amount thereof, was untimely because it was made for the first time after the verdict was rendered but before judgment was entered. The two further issues raised are whether a collateral source offset pursuant to CPLR 4545 must be pleaded as an affirmative defense pursuant to CPLR 3018 (

b) and, if so, whether defendant is entitled to amend its answer to assert that affirmative defense. For the reasons that follow, we conclude that the application for a collateral source offset was timely and that a collateral source offset must be pleaded as an affirmative defense. We further conclude on the facts before us that the answer should be deemed amended pursuant to CPLR 3025 (

c) to assert that affirmative defense. Claimant’s decedent, James A. Wooten, died of congestive heart failure while incarcerated. Claimant, the widow of decedent and the administrator of his estate, commenced this wrongful death action alleging negligence and medical malpractice. Following a bench trial, the Court of Claims found that defendant was liable for decedent’s death based on defendant’s failure to provide adequate medical care, and determined that the distributees of decedent’s estate were claimant and decedent’s son.

The court’s award of damages included $24,000 for past lost wage-related support, $138,000 for future lost wage-related support, $4,000 for past lost household services, $34,000 for future lost household services, $3,167.28 for funeral expenses, $10,000 for past lost parental support and guidance, and $125,000 for future lost parental support and guidance, for a total award of $338,167.28. The court held judgment in abeyance pending a hearing pursuant to CPLR

article 50-B. While judgment was in abeyance, defendant advised claimant that it had calculated an offset for Social Security survivor benefits paid to decedent’s son. Claimant moved to determine the amount of the judgment to be entered and to preclude any application for an offset as either waived or untimely, and defendant moved to fix the amount of the offset pursuant to CPLR

article 50-B. The court held claimant’s motion in abeyance pending a determination from Surrogate’s Court with respect to dividing part of the award and denied defendant’s motion on the ground that defendant had failed to seek that relief in a timely fashion. As a preliminary matter, we note that claimant failed to preserve for our review her contention that the issues before us are not ripe for resolution (see generally Gitlen v Gallup, 241 AD2d 856, 859). Indeed, claimant herself first raised the issues in her posttrial motion.

Contrary to claimant’s contention, the court erred in determining that defendant’s posttrial application for an offset was untimely. We conclude that, in the absence of direction from the trial court to the contrary (see Virkler v Shockney, 178 AD2d 966), an application for a collateral source offset is timely if made before judgment is entered. We reject claimant’s contention that defendant failed to make a timely request for a collateral source hearing pursuant to CPLR 4404 (

b) and 4405. The 15-day time limitation set forth in CPLR 4405, by its express terms, applies only to motions made pursuant to CPLR

article 44 (cf. Bongiovanni v Staten Is. Med. Group, 188 Misc 2d 362). The issue of the admissibility of collateral sources of payment is governed by CPLR

article 45, which does not contain a time limitation. Claimant’s reliance on Virkler is misplaced because that case is factually distinguishable from the case before us. In Virkler, we concluded that defendants had not preserved for our review their contention on appeal that a collateral source hearing should have been held. After the verdict was announced in Virkler, the trial court set a date for motions with respect to the verdict.

When defendants informed the court that a collateral source hearing would be needed, the court indicated that defendants should apply for such a hearing by way of a posttrial motion if the parties themselves were unable to resolve the issue. Defendants failed thereafter to inform the court that the issue had not been resolved, nor did they “challenge the award for loss of earnings or otherwise seek a hearing” (Virkler, 178 AD2d at 967). Here, the issue is preserved for our review (cf. Boone v Hopkins, 298 AD2d 866).

We reject claimant’s further contention that CPLR 4545, which provides for a reduction in an award of damages based on reimbursement from collateral sources, requires the introduction of evidence on the issue of collateral source reimbursement during the trial rather than during a posttrial hearing (see Caruso v LeFrois Bldrs., 217 AD2d 256, 258-259; see also Turnbull v USAir, Inc., 133 F3d 184, 188-189).

Moreover, contrary to claimant’s contention, there is no requirement in CPLR 4545 that, for bench trials only, evidence of collateral sources of payment must be presented during the trial and not during a posttrial hearing (see Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C4545:3, at 349; see also Teichman v Community Hosp. of W. Suffolk, 205 AD2d 16, 19 [“the Legislature intended the statute to define an evidentiary rule which is to be applied only where the matter is tried and a judgment in favor of a plaintiff has been ‘awarded’ ”], mod on other grounds 87 NY2d 514).

Claimant further contends that defendant waived its right to an offset by failing to seek the offset by way of an affirmative defense in its answer. We agree with claimant that collateral sources of payment pursuant to CPLR 4545 must be pleaded as an affirmative defense. We reach our conclusion based on the broad mandate set forth in CPLR 3018 (

b) that “[a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading.” As this Court wrote in Davis v Davis (49 AD2d 1024, 1024), “Under [that] section, partial defenses and matters that tend to mitigate damages must be pleaded affirmatively” (see 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.17, at 30-421; see generally Whalen v Kawasaki Motors Corp., 92 NY2d 288, 293). In Whalen (92 NY2d at 293), Judge Ciparick wrote for a unanimous Court: “Notably, as an affirmative defense, General Obligations Law § 15-108 (

a) must be pled by a tortfeasor seeking its protection.” We reject the view expressed in the footnote in the concurring opinion that Whalen is “not instructive” and, indeed, we conclude that Whalen is dispositive. There is no valid distinction under CPLR 3018 (

b) between an offset asserted pursuant to General Obligations Law § 15-108 (

a) and an offset asserted pursuant to CPLR 4545. Both invoke a statute-based reduction in the verdict, and both are presented to and determined by the court after the verdict is rendered rather than during trial. The fact that the offset asserted pursuant to General Obligations Law § 15-108 (

a) is based on a plaintiff’s settlement with a tortfeasor while the offset asserted pursuant to CPLR 4545 is based on reimbursement of a plaintiff’s expenses from a collateral source is inconsequential. In both instances, the offset sought by a defendant “raise [s] issues of fact not appearing on the face of a prior pleading” (CPLR 3018 [b]), thus requiring that the offset be pleaded as an affirmative defense. We note that the requirement in CPLR 3018 (

b) that “ [a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading” is in the disjunctive, and thus either circumstance invokes the pleading requirement {see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3018:13). Thus, the absence of surprise to the plaintiff herein is no different from the absence of surprise to a plaintiff who, as in Whalen, has settled with a tortfeasor.

Moreover, the public policy supporting collateral source offsets is no stronger than the public policy supporting offsets pursuant to General Obligations Law § 15-108 (a). Nor, for that matter, is the public policy supporting collateral source offsets stronger than the public policy supporting the statute of limitations and the statute of frauds, defenses that also are waived unless affirmatively pleaded pursuant to CPLR 3018 (b) (see Matter of Watt v Town of Gaines, 140 AD2d 947, lv denied in part and dismissed in

part 72 NY2d 1040; Barnum v Frickey, 115 AD2d 977). Here, defendant contends for the first time on appeal that the court should have, apparently sua sponte, permitted it to amend its answer to assert the offset as an affirmative defense. We note that, although defendant did not move to amend its answer before the trial court, it sought discovery concerning reimbursement from collateral sources, notified claimant after the verdict of its calculation of the CPLR 4545 offset, and moved to fix the amount of that offset.

Notably, claimant adduced evidence at trial that decedent’s son was receiving Social Security benefits. Appellate courts have sua sponte amended answers to conform to the evidence at trial (see e.g. Smith v Pagano, 154 AD2d 586, 587-588, lv denied 76 NY2d 703; Smirlock Realty Corp. v Title Guar. Co., 97 AD2d 208, 236, mod on other grounds 63 NY2d 955; D'Antoni v Goff, 52 AD2d 973, 974; see also Tri-County Med. Group v Fingerman, 226 AD2d 155; Cartwright Van Lines v Barclays Bank of N.Y., 120 AD2d 478, 479, lv denied 68 NY2d 608).

Where, as here, there is no prejudice or surprise to claimant and, indeed, defendant asserts on appeal that its answer should have been amended to assert the offset as an affirmative defense, we conclude in the exercise of our discretion that defendant should be afforded that relief (see CPLR 3025 [c]; Smirlock Realty Corp., 97 AD2d at 236; D'Antoni, 52 AD2d at 974; see also Cartwright Van Lines, 120 AD2d at 479).

Accordingly, we conclude that the order should be reversed, defendant’s answer deemed amended to assert the collateral source offset as an affirmative defense, and the matter should be remitted to the Court of Claims for further proceedings to determine the application for and, if necessary, the amount of the offset and the amount of the judgment to be entered.