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WOOTEN v. STATE OF NY

302 A.D.2d 70 (2002)

753 N.Y.S.2d 266

TINA WOOTEN, Individually and as Administrator of the Estate of JAMES A. WOOTEN, Deceased, Respondent, v. STATE OF NEW YORK, Appellant. (Claim No. 93933.)

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

December 30, 2002.

Attorney(s) appearing for the Case

Eliot Spitzer, Attorney General, Albany (Michael S. Buskus of counsel), for appellant.

Andrew F. Plasse, P.C., New York City, for respondent.

WISNER, J.P., and GORSKI, J., concur with HURLBUTT, J.; SCUDDER and LAWTON, JJ., concur in part and dissent in part in a separate opinion by SCUDDER, J.

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...

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