Watkins v. Bank of Castile

firmed with costs. Memorandum: Defendants contend that plaintiff is barred by collateral estoppel from litigating his claim for lost wages. We disagree. Because plaintiff arbitrated only his no-fault claim for medical expenses, and not his claim for lost wages, there is no identity of issue to form a basis for issue preclusion (see, Kaufman v Lilly & Co., 65 NY2d 449 , 455; Kingston v State Farm Mut. Auto. Ins. Co., 165 AD2d 970 ). Indeed, the issue of lost wages could not have been considered in the health service arbitration because, under the multitiered no-fault arbitration system, that arbitration forum is limited to medical payment claim disputes (see, 11 NYCRR 65.16 [c] [3] [ii]; see also, Matter of Berent [County of Erie], 86 AD2d 764 ). Additionally, plaintiff’s failure to reach the $50,000 threshold for basic economic loss does not bar him from suing defendants for lost wages to the extent that they exceed basic economic loss (see generally, Fiveson v Kondenar, 110 AD2d 749 ; McDonnell v Best Bus Co., 97 AD2d 433 ). (Appeal from Order of Supreme Court, Wyoming County, Newman, J. —Summary Judgment.) Present—Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.