Andrialis v. Snyder

In Andrialis v. Snyder (159 Misc 2d 419 [Sup Ct, NY County 1993]), the court expressly held that school-supplied therapies and counseling should not provide for a reduction under CPLR 4545. The plaintiff in that case received awards for speech, physical and occupational therapy for 13 years and psychotherapy for 15 years. The defendants sought a reduction under CPLR 4545, claiming that this therapy could be provided at school and in support of that claim submitted the testimony of Paul Ivers, an employee of the New York City Board of Education. In rejecting the defendants' claim, the court found as follows: "Mr. Ivers testified that the infant plaintiff's entitlement to these therapies would be 'based on a clinical assessment of the child', that it would be necessary that the infant plaintiff be 'found to need the services by a committee of Special Education', that he would be entitled to benefits only 'if he has been found to have a learning disability' (an issue vigorously disputed by defendants at trial, one of defendants' expert witnesses testifying that it was more probable than not that the infant plaintiff would graduate from college), that it had to be determined that 'he needs that therapy to maintain him in the program', that the entitlement of infant plaintiff to therapy, the amount of the therapy, and its duration would depend on a report prepared by a clinician who would 'review the child and submit a report' and 'on the clinical information presented to a committee'. Further, the parents could not select the therapist. The infant plaintiff would be treated only by those practitioners approved by the Board of Education and the State Education Department who would be paid a contractual rate arrived at by competitive bidding. The testimony offered concerning the bureaucratic approvals necessary to obtain treatment, and the limited choice of practitioners willing to accept the State contractual rate of payment sufficiently dilutes the reasonable certainty requirement. I do not find, therefore, with reasonable certainty that the therapies the jury concluded the infant plaintiff needs will be replaced by the so-called collateral sources discussed by Mr. Ivers in his testimony. No deduction will be made, therefore, from the reduced awards for therapies." (Supra, at 428-429.)