New York State Court of Claims

New York State Court of Claims

AUER v. THE STATE OF NEW YORK, #2000-001-503, Claim No. 86167


Synopsis


This Order sets out specifically all monies, interest and payments relative to the award rendered in the Damages decision.

Case Information

UID:
2000-001-503
Claimant(s):
SARAH E. AUER, as Guardian of MELODY DAWN AUER and SARAH E. AUER and FRANKLIN H. AUER, Individually
Claimant short name:
AUER
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
86167
Motion number(s):

Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Ackerman, Wachs and Finton, P.C.
Rosenblum, Ronan, Kessler and Sarachan, Of CounselBy: Michael W. Kessler, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Risa Viglucci and Belinda A. Wagner, Assistant Attorneys General, Of Counsel
Third-party defendant's attorney:

Signature date:
August 30, 2000
City:
Albany
Comments:

Official citation:

Appellate results:
Affirmed - Third Dept., 12/6/01
See also (multicaptioned case)


Decision
The issues in this action having been brought on for trial on the issue of liability before the Hon. James P. King, Judge of the Court of Claims; and the claimants, Sarah E. Auer, as Guardian of Melody Dawn Auer, and Sarah E. Auer and Franklin H. Auer, Individually, having appeared by their attorney, Michael W. Kessler, Esq., of counsel to Rosenblum, Ronan, Kessler & Sarachan, LLP, and Ackerman, Wachs and Finton, P.C.; and defendant State of New York, having appeared by the Attorney-General of the State of New York, Providence Baker, Esq., Assistant Attorney General, of counsel; and the Hon. James P. King, having rendered a decision on liability on November 4, 1998, which was filed on November 16, 1998, determining liability against defendant State of New York and in favor of claimants Sarah E. Auer, as Guardian of Melody Dawn Auer, and Sarah E. Auer and Franklin H. Auer, Individually; and the issues in this action pertaining to damages having been brought on for trial before the Hon. James P. King; and the claimants having appeared by their attorney, Michael W. Kessler, Esq., of counsel to Rosenblum, Ronan, Kessler & Sarachan, LLP, and Ackerman, Wachs and Finton, P.C., and defendant State of New York having appeared by the Attorney-General of the State of New York, Belinda Wagner, Esq., and Risa Viglucci, Esq., Assistant Attorneys General, of counsel; and the Hon. James P. King having rendered a decision on damages on December 29, 1999, which was filed on December 30, 1999; and a Final Judgment in favor of claimants Sarah E. Auer and Franklin H. Auer, Individually, and an Interlocutory Judgment in favor of Sarah E. Auer, as Guardian of Melody Dawn Auer, having been entered by the Clerk of the Court of Claims on January 11, 2000; and the parties having entered into a stipulation dated March 12, 2000, to waive a hearing pursuant to CPLR Article 50-B, stipulate to a discount rate of 6.25 percent and resolve collateral source and certain other issues and adjustments as required to convert the Court's decision on damages under CPLR 4213 into Final Judgment under CPLR Article 50-B; and the Hon. Susan Phillips Read, Presiding Judge of the Court of Claims, having rendered a Decision and Order on June 21, 2000, which was filed on June 22, 2000, modifying the Final Judgment in favor of claimants Sarah E. Auer and Franklin H. Auer, Individually, and determining, among other things, the rates of post-decision and post-judgment interest to be applied and making collateral source adjustments to the damages awarded; and the parties having entered into a stipulation dated July 24, 2000 to set forth agreed upon CPLR Article 50-B computations; and the Hon. Susan Phillips Read, Presiding Judge of the Court of Claims, having rendered a Decision dated and filed August 30, 2000, along with this Order, resolving those issues identified by the parties as in dispute relative to CPLR Article 50-B computations;

AND Sarah E. Auer having been appointed as Guardian of Melody Dawn Auer by Order of the Hon. Lawrence E. Kahn, Justice of the Supreme Court, dated December 3, 1993, a certified copy of which has been filed with the Court, and Sarah E. Auer, as Guardian of Melody Dawn Auer, having retained the firms of Rosenblum, Ronan, Kessler & Sarachan, LLP and Ackerman, Wachs and Finton, P.C., pursuant to a retainer agreement, which provides for paying Rosenblum, Ronan, Kessler & Sarachan, LLP and Ackerman, Wachs and Finton, P.C. attorneys' fees of 33 1/3% of any and all sums recovered in this action, plus disbursements, computed in accordance with the Rules of the Appellate Division, Third Department;

AND the Court, having determined by its Decision and Order dated June 21 and filed June 22, 2000 that the revised damages itemized in accordance with CPLR 4213, after adjustment for collateral source payments, are as follows:

As to claimant Sarah E. Auer, as Guardian of Melody Dawn Auer:
Past Damages:
$1,500,000.00 for pain and suffering

$11,496.00 for lost wages and employment benefits

$498,726.34 for medical expenses

Total Past Damages: $2,010,222.34
Future Damages (undiscounted to present value):
$750,000.00 for pain and suffering to be paid over 10 years (120 months)

$1,292,405.00 for lost wages and employment benefits to be paid over 38 years (456 months)

$14,883,193.00 for medical and other care to be paid over 38 years (456 months)
Total Future Damages to Sarah E. Auer, as Guardian of Melody Dawn Auer (undiscounted to present value): $16,925,598.00
Total Damages to Sarah E. Auer, as Guardian of Melody Dawn Auer (undiscounted to present value): $18,935,820.34
As to claimant Sarah E. Auer, Individually: $100,000.00
As to claimant Franklin H. Auer, Individually: $52,180.00
Total adjusted past and future damages to all claimants (undiscounted to present value): $19,088,000.34;
NOW, upon motion of Rosenblum, Ronan, Kessler & Sarachan, LLP, of counsel to Ackerman, Wachs and Finton, P.C., attorneys for Sarah E. Auer, as Guardian of Melody Dawn Auer, and Sarah E. Auer and Franklin H. Auer, Individually, to settle judgment pursuant to Article 50-B of the CPLR; it is

ORDERED, that the damages to be paid by defendant State of New York to claimants are computed as follows:
ALLOCATION OF $250,000.00 OF FUTURE DAMAGES
PAYABLE IN A LUMP SUM
The first $250,000.00 of future damages, payable in a lump sum, is allocated as follows with respect to the different elements of future damages:
ElementAmount% of FutureAllocationNet After
(Undiscounted)DamagesAllocation
Pain & Suffering$ 750,000.004.43%$ 11,077.90$ 738,922.10
Lost Wages
& Employment Benefits$ 1,292,405.007.64%$ 19,089.50$ 1,273,315.50
Medical
& Other Care$14,883,193.0087.93% $219,832.60 $14,663,360.40
100%$250,000.00
ALLOCATION OF LITIGATION EXPENSES
Litigation expenses of $467,716.00 payable in a lump sum are allocated against various elements of damages as follows, with the resulting net amounts:
  1. Past Damages:
ElementAmount% of TotalExpenseNet After
DamagesAllocationAllocation
Pain & Suffering$1,500,000.007.86%$36,754.71$1,463,245.29
Lost Wages
& Employment Benefits $ 11,496.000.06%$ 281.70$ 11,214.31
Medical Expenses$ 498,726.342.61%$12,220.36$ 486,505.98
Sarah E. Auer$ 100,000.000.52%$ 2,450.31$ 97,549.69
Franklin H. Auer$ 52,180.000.27%$ 1,278.57$ 50,901.43
  1. Allocation of litigation expenses to the $250,000.00 of future damages payable in a lump sum:
ElementAmount% of TotalExpenseNet After
DamagesAllocationAllocation
1
st $250,000.00 of
Future Damages$250,000.001.31%$6,125.79$243,874.21
  1. Future Damages after deduction of the $250,000.00 of future damages payable in a lump sum:
ElementNet After Allocation% of TotalExpenseNet After
Of $250,000.00DamagesAllocationAllocation
Pain & Suffering$ 738,922.103.87%$ 18,105.91$ 720,816.19
Lost Wages
& Employment Benefits$ 1,273,315.506.67%$ 31,200.23$ 1,242,115.27
Medical
& Other Care $14,663,360.40 76.82% $359,298.42 $14,304,061.98
$19,088,000.3499.99%[*]$467,716.00$18,620,284.35
PRESENT VALUE OF FUTURE INSTALLMENT PAYMENTS
The present values of the future installment payments to be paid periodically, using a discount rate of 6.25%, are:
Pain & Suffering (10 years):$ 637,494.04
Lost Wages & Employment Benefits (38 years):$ 835,125.97
Medical & Other Care (38 years):$9,617,218.27
ATTORNEYS' FEES AND LITIGATION EXPENSES
Attorneys' fees and litigation expenses, which are payable in a lump sum, computed on the amount of past damages (after deduction of allocated litigation expenses) and net present value of future damages (after deduction of allocated litigation expenses) are as follows:
ElementNet Amount AfterAttorneys'Present Value of
Deduction ofFeesClaimants'
Litigation ExpensesRemaining Recovery
Past Pain & Suffering$ 1,463,245.29$ 487,748.43$ 975,496.86
Past Lost Wages
& Employment Benefits$ 11,214.31$ 3,738.10$ 7,476.21
Past Medical Expenses$ 486,505.98$ 162,168.66$ 324,337.32
1st $250,000.00 of
Future Damages$ 243,874.21$ 81,291.40$ 162,582.82

Remaining Future
Pain & Suffering$ 637,494.04$ 212,498.01$ 424,996.03

Remaining Future
Lost Wages
& Employment Benefits$ 835,125.97$ 278,375.32$ 556,750.65

Remaining Future
Medical & Other Care$ 9,617,218.27$3,205,739.42$ 6,411,478.85
Sarah E. Auer$ 97,549.69$ 32,516.56$ 65,033.13
Franklin H. Auer$ 50,901.43 $ 16,967.14 $ 33,934.29
$13,443,129.19$4,481,043.04$ 8,962,086.15
Present Value of Net Recovery$13,443,129.19
Litigation Expenses$ 467,716.00
Present Value of Total Recovery$13,910,845.19
Attorneys' Fees on Net Recovery$ 4,481,043.04
Litigation Expenses$ 467,716.00

Total Amount of Attorneys' Fees and Litigation
Expenses $ 4,948,759.04
Present Value of Remaining Amounts Due Claimants$ 8,962,086.15
FUTURE PERIODIC PAYMENTS OWED
Sarah E. Auer, as Guardian of Melody Dawn Auer, is owed the following annual payments over the specified period of years, increasing by four percent compounded each year and payable in equal monthly payments in advance:

Annual Payments:
First year annual payments are as follows:
Future Pain & Suffering$ 48,054.42 (10 years)
Future Lost Wages
& Employment Benefits$ 21,791.50 (38 years)
Future Medical & Other Care$250,948.47 (38 years)

Accordingly, first monthly payments are as follows:

Future Pain & Suffering$ 4,004.53
Future Lost Wages
& Employment Benefits$ 1,815.96
Future Medical & Other Care$ 20,912.37

With respect to Sarah E. Auer, as Guardian of Melody Dawn Auer, it is therefore
ORDERED, that Sarah E. Auer, as Guardian of Melody Dawn Auer, has judgment against and does recover from defendant State of New York, and defendant is directed to pay Sarah E. Auer, as Guardian of Melody Dawn Auer, as follows:

(A) $975,496.86 as her net recovery for past pain and suffering, to be paid in a lump sum;

(B) $7,476.21 as her net recovery for past lost wages and employment benefits, to be paid in a lump sum;

(C) $324,337.32 as her net recovery for past medical expenses, to be paid in a lump sum;

(D) $162,582.82 as her net recovery for the first $250,000.00 of future damages, to be paid in a lump sum; and it is further

ORDERED, that Sarah E. Auer, as Guardian of Melody Dawn Auer, has judgment against and does recover from defendant State of New York, and defendant is directed to make periodic payments to Sarah E. Auer, as Guardian of Melody Dawn Auer, as follows:

(A) For future pain and suffering, the first annual amount of $48,054.42 to be paid in 12 equal monthly installments of $4,004.53, paid in advance, and such annual payments in equal monthly installments shall be increased at the rate of 4% per year compounded annually commencing at the beginning of the second year (13
th monthly payment) for a total of 10 years (120 months) or for the life of Melody Dawn Auer, whichever is shorter;
(B) For future lost wages, the first annual amount of $21,791.50 to be paid in 12 equal monthly installments of $1,815.96, paid in advance, and such annual payments in equal monthly installments shall be increased at the rate of 4% per year compounded annually commencing at the beginning of the second year (13
th monthly payment) for a total of 38 years (456 months);
(C) For future medical and other care, the first annual amount of $250,948.47 to be paid in 12 equal monthly installments of $20,912.37 paid in advance, and such annual payments in equal monthly installments shall be increased at the rate of 4% per year compounded annually commencing at the beginning of the second year (13
th monthly payment) for a total of 38 years (456 months) or for the life of Melody Dawn Auer, whichever is shorter; and it is further
ORDERED, that defendant State of New York is hereby directed to offer, purchase and guarantee the payment of an annuity contract providing for payment of the aforementioned periodically paid future damages; and that with respect to
Sarah E. Auer, Individually, it is
ORDERED, that Sarah E. Auer, Individually, has judgment against and does recover from defendant State of New York, and defendant is directed to pay Sarah E. Auer $65,033.13 in a lump sum as her net recovery for services, and with respect to
Franklin H. Auer, Individually, it is
ORDERED, that Franklin H. Auer, Individually, has judgment against and does recover from defendant State of New York, and defendant is directed to pay Franklin H. Auer $33,934.29 in a lump sum as his net recovery for services; and with respect to
Attorneys' Fees and Litigation Expenses, it is
ORDERED, that claimants' attorneys Rosenblum, Ronan, Kessler & Sarachan, LLP, and Ackerman, Wachs and Finton, P.C., have judgment against and recover from defendant State of New York, and defendant is directed to pay Rosenblum, Ronan, Kessler & Sarachan, LLP, and Ackerman, Wachs and Finton, P.C., $467,716.00 in a lump sum to reimburse litigation expenses incurred on behalf of claimants through June 21, 2000; and it is further

ORDERED, that claimants' attorneys Rosenblum, Ronan, Kessler & Sarachan, LLP, and Ackerman, Wachs and Finton, P.C. have judgment against and recover from defendant State of New York, and defendant is directed to pay Rosenblum, Ronan, Kessler & Sarachan, LLP, and Ackerman, Wachs and Finton, P.C., $4,481,043.04 in a lump sum for attorneys' fees; and with respect to
Post-Decision Interest, it is
ORDERED, that pursuant to CPLR § 5002 post-decision interest shall be assessed against defendant State of New York, and that defendant is directed to make the following lump sum payments of post-decision interest:
Post-Decision Interest to Sarah E. Auer, as Guardian of Melody Dawn Auer
(A) On the net recovery of Sarah E. Auer, as Guardian of Melody Dawn Auer, of $975,496.86 for past pain and suffering, post-decision interest at the rate of 5.23% per annum from November 4, 1998 to August 30, 2000, or at a daily rate of $139.78 for a lump sum payment of $92,953.70;

(B) On the net recovery of Sarah E. Auer, as Guardian of Melody Dawn Auer, of $7,476.21 for past lost wages and employment benefits, post-decision interest at the rate of 5.23% per annum from November 4, 1998 to August 30, 2000, or at a daily rate $1.07 for a lump sum payment of $711.55;

(C) On the net recovery of Sarah E. Auer, as Guardian of Melody Dawn Auer, of $324,337.33 for past medical expenses, post-decision interest at the rate of 5.23 % per annum from November 4, 1998 to August 30, 2000, or at a daily rate of $46.47 for a lump sum payment of $30,902.55;

(D) On the net recovery of Sarah E. Auer, as Guardian of Melody Dawn Auer, of $162,582.81 (representing her share of the first $250,000.00 of future damages, payable in a lump sum), discounted from December 29, 1999 to a present value as of November 4, 1998 of $148,722.22, post-decision interest at the rate of 5.23% per annum from November 4, 1998 to August 30, 2000, or at a daily rate of $21.31 for a lump sum payment of $14,171.15; and

(E) On the net recovery of Sarah E. Auer, as Guardian of Melody Dawn Auer, of $7,393,225.53 (representing the present value of the net future periodic payments), discounted from December 29, 1999 to a present value as of November 4, 1998 of $6,762,934.77, post-decision interest at the rate of 5.23% per annum from November 4, 1998 to August 30, 2000, or at a daily rate of $969.04 for a lump sum payment of $644,411.60;
Post-Decision Interest to Sarah E. Auer, Individually
On the net recovery of Sarah E. Auer, Individually, of $65,033.13, post-decision interest at the rate of 5.23% per annum from November 4, 1998 to January 11, 2000, or at a daily rate of $9.32 for a lump sum payment of $4,035.56;
Post-Decision Interest to Franklin H. Auer, Individually
On the net recovery of Franklin H. Auer, Individually, of $33,934.29, post-decision interest at the rate 5.23% per annum from November 4, 1998 to January 11, 2000, or at a daily rate of $4.86 for a lump sum payment of $2,104.38;
Post-Decision Interest on Attorneys' Fees and Litigation Expenses
(A) On the attorneys' fees attributable to past damages of Sarah E. Auer, as Guardian of Melody Dawn Auer and the litigation expenses allocated to her recovery, or $1,117,642.31, post-decision interest at the rate of 5.23% per annum from November 4, 1998 to August 30, 2000, or at a daily rate of $160.14 for a lump sum payment of $106,493.10;

(B) On the attorneys' fees attributable to and litigation expenses allocated to past damages of Sarah E. Auer and Franklin H. Auer, Individually, or $53,212.58, post-decision interest at the rate of 5.23% per annum from November 4, 1998 to January 11, 2000, or at a daily rate of $7.62 for a lump sum payment of $3,299.46; and

(C) On the attorneys' fees attributable to future damages of Sarah E. Auer, as Guardian of Melody Dawn Auer, or $3,777,904.15, which sum is discounted from December 29, 1999 to a present value as of November 4, 1998 of $3,455,828.48, post-decision interest at the rate of 5.23% per annum from November 4, 1998 to August 30, 2000, or at a daily rate of $495.17 for a lump sum payment of $329,288.05; and with respect to
Post-Judgment Interest, it is
ORDERED, that pursuant to CPLR § 5003 post-judgment interest shall be assessed against defendant State of New York, and that defendant is directed to make the following lump sum payments of post-judgment interest:
Post-Judgment Interest to Sarah E. Auer, as Guardian of Melody Dawn Auer
On the present value of the total recovery of Sarah E. Auer, as Guardian of Melody Dawn Auer, of $9,646,269.29 ($8,863,118.74 for the combined total of past pain and suffering [$975,496.86], past lost wages and employment benefits [$7,476.21], past medical expenses [$324,337.33], her share of the first $250,000.00 of future damages [$162,582.81], and the present value of the periodic payments for future pain and suffering, future lost wages and employment benefits and future medical and other care [$7,393,225.53], plus post-decision interest totalling $783,150.55, as particularized above), post-judgment interest at a rate equal to the average of the coupon issue yield equivalent (as determined by the Secretary of the United States Treasury) of the average accepted auction price at the June 1, 2000 auction of 52-week United States Treasury Bills (6.375%) and at all succeeding auctions up to and including the last auction settled immediately prior to (a) the date that the annuity to fund the periodic payments is purchased (for post-judgment interest on the present value of periodically paid damages and the concomitant post-decision interest) and (b) the date all lump sum payments are paid (for post-judgment interest on damages payable in a lump sum and the concomitant post-decision interest), computed from August 30, 2000 until each such date, respectively. The rate(s) so determined shall be rounded to the nearest hundredth of a percent;
Post-Judgment Interest to Sarah E. Auer, Individually
On the total recovery of Sarah E. Auer, Individually, of $69,068.69 ($65,033.13 plus post-decision interest of $4,035.56), post-judgment interest at the rate equal to the average of the coupon issue yield equivalent (as determined by the Secretary of the United States Treasury) of the average accepted auction price at the June 1, 2000 auction of 52-week United States Treasury Bills (6.375%) and at all succeeding auctions up to and including the last auction settled immediately prior to the date of payment (rounded to the nearest hundredth of a percent), computed from January 11, 2000 until the date of payment;Post-Judgment Interest to Franklin H. Auer, Individually
On the total recovery of Franklin H. Auer, individually, of $36,038.67 ($33,934.29 plus post-decision interest of $2,104.38), post-judgment interest at the rate equal to the average of the coupon issue yield equivalent (as determined by the Secretary of the United States Treasury) of the average accepted auction price at the June 1, 2000 auction of 52-week United States Treasury Bills (6.375%) and at all succeeding auctions up to and including the last auction settled immediately prior to the date of payment (rounded to the nearest hundredth of a percent), computed from January 11, 2000 until the date of payment;
Post-Judgment Interest on Attorneys' Fees and Litigation Expenses
(A) On the total attorneys' fees and litigation expenses attributable to the recovery of Sarah E. Auer, as Guardian of Melody Dawn Auer, or $5,331,327.61 ($4,895,546.46 plus post-decision interest of $435,781.15), post-judgment interest at the rate equal to the average of the coupon issue yield equivalent (as determined by the Secretary of the United States Treasury) of the average accepted auction price at the June 1, 2000 auction of 52-week United States Treasury Bills (6.375%) and at all succeeding auctions up to and including the last auction settled immediately prior to the date of payment (rounded to the nearest hundredth of a percent), computed from August 30, 2000 until the date of payment;

(B) On the total attorneys' fees and litigation expenses attributable to the recovery of claimants Sarah E. Auer and Franklin H. Auer, Individually, or $56,512.04 ($53,212.58 plus post-decision interest of $3,299.46), post-judgment interest at the rate equal to the average of the coupon issue yield equivalent (as determined by the Secretary of the United States Treasury) of the average accepted auction price at the June 1, 2000 auction of 52-week United States Treasury Bills (6.375%) and at all succeeding auctions up to and including the last auction settled immediately prior to the date of payment (rounded to the nearest hundredth of a percent), computed from January 11, 2000 until the date of payment; and it is further

ORDERED, that the annuity contract required by this judgment and Article 50-B of the Civil Practice Law and Rules shall be presented to the Court for approval pursuant to § 5042 of the Civil Practice Law and Rules.


August 30, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[*]
The percentages shown are rounded to the nearest 1/100 percent. Dollar calculations are made with the actual decimals.