Freligh v. Government Employees Insurance Co.

Egan Jr., J.

(dissenting). The crux of defendant’s argument upon appeal is that, as of the filing of plaintiff’s application for no-fault benefits, his alleged future employer, VW Parts, Inc. (hereinafter the parts business), “was a defunct business” and, therefore, “there was no actual employment available to plaintiff.” Absent a legitimate job opportunity, defendant’s argument — and the majority’s premise — continues, plaintiff’s claim for lost wages is entirely speculative, thereby warranting dismissal thereof. We disagree and, therefore, respectfully dissent.

To our analysis, the majority has engaged in an unduly narrow reading of the record — seizing upon those facts that would militate in favor of dismissing plaintiff’s claim while discounting any proof that could reasonably be construed as supporting plaintiff’s contention that he had a legitimate job offer and, hence, that his future earnings were in fact reasonably projected. In this regard,, it bears repeating that, on a motion for summary judgment, we must view the evidence “in the light most favorable to the nonmoving party, who is afforded the benefit of every reasonable inference” to be drawn therefrom (Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [2017]; see Giglio v Saratoga Care, Inc., 117 AD3d 1143, 1145 [2014]). Applying that standard to the record before this Court, we find questions of fact as to whether plaintiff indeed had a bona fide position with the parts business effective January 1, 2013 and, further, whether plaintiff would have been able to begin work at the stated salary but for the intervening motor vehicle accident.

As the majority has recounted at length, there indeed is no question that the parts business and its sole shareholder, William Hrazanek, had — in the wake of Hurricane Irene — fallen on hard times. Against this backdrop, however, the record nevertheless reflects that, on or about December 15, 2012, Hrazanek offered plaintiff, whom he had known for approximately 15 years, a position as a parts specialist and *1150warehouse manager; plaintiff’s employment in that capacity was to commence on January 1, 2013, and his salary was slated to be $2,000 per week (including benefits). Although plaintiff’s projected salary exceeded the salaries paid to other employees of the parts business, Hrazanek testified that no one else possessed plaintiff’s qualifications and that he was effectively “basing [the] future” of his business upon plaintiff’s expertise. Hrazanek further testified that plaintiff “had worked at numerous Audi dealers and had been to all of the schools and so forth,” leading Hrazanek to conclude that plaintiff was the person he needed to “expand the business and get back on track after the flood.”1 Plaintiff’s affidavit in opposition to defendant’s motion largely echoed Hrazanek’s account of plaintiff’s hiring — with plaintiff averring that he was offered and accepted a position with the parts business eight days before the accident occurred, that he was scheduled to begin work in January 2013 and that, as a result of the accident, he was unable to do so. According to plaintiff, who had more than 25 years of experience in the automotive parts industry, his new position with the parts business would consist of dismantling vehicles and warehousing the individual parts, and he would utilize his extensive knowledge and experience regarding “which parts fit which vehicles and which parts [were] interchangeable” to “facilitate the sale of vehicle parts.” As of December 2012, plaintiff averred, the parts business had “about 1,500 to 2,000 intact cars awaiting to have [their] parts stripped, labeled and warehoused.”2 In light of such proof, we agree with Supreme Court that, as noted previously, the record as a whole contains questions of fact as to whether plaintiff indeed had a bona fide position with the parts business effective January 1, 2013 and, further, whether plaintiff would have been able to begin work at the stated salary but for the intervening motor vehicle accident.

In reaching a contrary conclusion, the majority relies upon, *1151among other things, the fact that, after plaintiff’s anticipated start date came and went, the parts business ceased operations altogether and ultimately was sold. This salient fact, however, cuts both ways. In other words, while the majority cites the eventual failure of the parts business as support for the proposition that it was a defunct operation from the very beginning, the failure of such business also lends credence to Hrazanek’s claim that the entire future of his overall business hinged upon hiring someone with plaintiff’s particular and demonstrated skill set.

The majority’s reliance upon plaintiff’s purported lack of success in running his own business is, to our analysis, similarly misplaced. Even assuming, without deciding, that the majority’s interpretation of plaintiff’s tax returns indeed leads to the inevitable conclusion that he would be unable to singlehand-edly operate a successful automobile repair business, the fact remains that plaintiff was offered a position as a parts specialist and warehouse manager, that — as noted previously— plaintiff had more than 25 years of experience in the automotive parts industry and that, whatever other inventory Hrazanek may have lost in the hurricane or whatever other financial setbacks he may have suffered, the parts business had — as of December 2012 — between 1,500 and 2,000 vehicles waiting to be dismantled and sold for parts. As for the majority’s conclusion that “the actual value of the parts business, which would include those vehicles and their parts, was $40,000,” we do not subscribe to the implicit assumption that the eventual “fire sale” value of the business necessarily was indicative of the value of the underlying inventory as of January 2013. Nor are we persuaded that the ultimate sale price obtained by Hrazanek — once plaintiff was injured — somehow bears upon whether Hrazanek could have met plaintiff’s promised salary had their business relationship gone forward.

Finally, our conclusions in this regard are not, as the majority suggests, predicated upon Hrazanek’s and plaintiff’s subjective beliefs as to either the financial viability of the parts business, the success of the planned repair shop or the breadth of plaintiff’s automotive skills. Rather, the issue distills to — -and our analysis is focused upon — whether, based upon a review of the record as a whole and construing all of the proof contained therein in the light most favorable to plaintiff, plaintiff’s future earnings were reasonably projected. In reversing and granting defendant summary judgment, the majority does what is not ours to do — judge the credibility of the witnesses. Given the conflicting proof, we think that Supreme Court was right to let a jury judge plaintiff’s account.

. According to the majority, “[w]hen Hrazanek claimed that the future of the business depended on plaintiff, he was referring to his plan to have plaintiff operate an automobile repair shop.” While that is one possible interpretation of Hrazanek’s testimony, we read Hrazanek’s testimony in a more neutral fashion — leading to the conclusion that Hrazanek generally viewed plaintiff as an asset to building and/or rebuilding the various components of the business.

. While the majority makes much of the fact that Hrazanek did not expressly state that plaintiff’s job would include dismantling vehicles and selling their parts, plaintiff’s affidavit makes clear that he understood that such tasks would be part of his new position — a fact born out by the employment application that plaintiff completed and Hrazanek signed, which reflects that plaintiff was being hired as a parts specialist and warehouse manager.