HOTHAN v. METROPOLITAN SUBURBAN BUS AUTH

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff police officer was injured when his patrol car struck a bus as he was responding to a radio call. Upon finding that the bus driver was at fault in the happening of the accident, a jury awarded, inter alia, $1,347,500 for future lost earnings and nothing for future pain and suffering. In posttrial motions, both sides argued that the verdict awarding damages for future lost earnings but nothing for future pain and suffering was inconsistent and against the weight of the evidence. The Supreme Court properly set aside that part of the verdict which failed to award damages for future pain and suffering. Evidence of the plaintiff's permanent injury was uncontroverted, and there is no reasonable interpretation of the evidence to support the jury's determination that the plaintiff is not entitled to damages for future pain and suffering (see, Nicastro v. Park, 113 A.D.2d 129, 133; Barker v. Bice, 87 A.D.2d 908).

The Supreme Court also properly rejected the defendants' argument that the case was governed by CPLR 4545(c), and instead applied CPLR 4545(b) to deny their request for a collateral source offset of future damages. Pursuant to the indemnification provisions of General Municipal Law § 50-b, the defendant bus company is deemed an employee of the County and is entitled to indemnification therefrom (see, Coleman v. Westchester St. Transp. Co., 57 N.Y.2d 734). As this was an action "against a public employer or a public employee who is subject to indemnification by a public employer with respect to such action * * * for personal injury or wrongful death arising out of an injury sustained by a public employee while acting within the scope of his public employment or duties", CPLR 4545(b) controls. The statute, which is in contravention of the common law and must therefore be construed as narrowly as possible, does not require that there be an employee-employer relationship between the parties (see, CPLR 4545[b]; Iazzetti v. City of New York, 94 N.Y.2d 183; Oden v. Chemung County Indus. Dev. Agency, 87 N.Y.2d 81, 86).

The defendants' remaining contentions are either not properly before this court or without merit.

O'BRIEN, J.P., FLORIO, SCHMIDT and TOWNES, JJ., concur.