Stolowski v. 234 East 178th Street LLC

Defendant bears the burden of establishing by clear and convincing evidence that it is entitled to an offset for any collateral source payment that represents reimbursement for a category of loss that corresponds to a category of loss for which damages are awarded in this action (see CPLR 4545; Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81 [1995]). Thus, disclosure of the death benefits that were or will be received by plaintiffs Bellew and Meyran is material and necessary in defense of this action (see CPLR 3101). The collateral source hearing at which a defendant has the opportunity to make the above showing is held after a verdict has been rendered in the plaintiffs favor. However, “[p]retrial discovery is available so defendants can acquire information and documents that may later be used to support a motion for a collateral source hearing” (Firmes v Chase Manhattan Auto. Fin. Corp., 50 AD3d 18, 35 [2008], lv denied 11 NY3d 705 [2008]). The records of defendant’s post-fire repairs and remedial measures do not fall within any of the recognized exceptions to the general rule that evidence of post-accident repairs is generally inadmissible and may never be admitted to prove an admission of negligence (see Fernandez v Higdon El. Co., 220 AD2d 293 [1995]). Contrary to plaintiffs’ contentions, “general credibility impeachment” is not an exception. Control is not at issue here since defendant concedes that it owns the premises (see Hyman v Aurora Contrs., 294 AD2d 229 [2002]). The fire 550 department’s full investigation of the fire, which produced diagrams and photographs, provides evidence of the existence of a defective condition (compare Mercado v St. Andrews Hous. Dev. Fund Co., 289 AD2d 148 [2001] [plaintiff entitled to seek disclosure of post-accident repairs or modifications where defective condition of sidewalk could not be proven otherwise]; Longo v Armor El. Co., 278 AD2d 127 [2000] [same; parts removed during repair of defective elevator were discarded]). Concur— Andrias J.E, Friedman, DeGrasse, Freedman and ManzanetDaniels, JJ.