HUBBARD v.THE STATE OF NEW YORK, #2000-004-005, Claim No. 98149
Contribution Claim arising out of a two car accident on State highway.
BRADLEY K. HUBBARD and PATRICIA DALE HUBBARD, AS ADMINISTRATRIX OF THE ESTATE OF LISA A. HUBBARD, DECEASED
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
JEROME F. HANIFIN
SUGARMAN, WALLACE, MANHEIM & SCHOENWALD, LLPBY: KEVIN T. HUNT, ESQ., of counsel
HON. ELIOT SPITZER,
BY: JAMES E. SHOEMAKER, Assistant Attorney General, of counsel
May 24, 2000
See also (multicaptioned
This is a Claim for contribution.
On October 21, 1995, a car driven by Lisa Amy Hubbard, traveling westbound on
New York State Route 17, encountered some water puddled on the travel lane, went
into a skid, crossed the median into the eastbound lanes and collided with a car
driven by Myrtle B. Lyons (Lyons). As a result of that collision, Lisa Amy
Hubbard died on October 28, 1995. From the proof presented at the trial of this
Claim, the Court infers that Lyons died instantly at the accident
By Decision, Claim No. 93209, Hanifin J., filed March 20, 1997, this Court found
that Lisa Amy Hubbard was 20 percent responsible and the State of New York 80
percent responsible for the aforedescribed accident. Thereafter, by Decision,
Claim No. 93209, Hanifin J., filed December 17, 1997, this Court awarded damages
to the Estate of Lisa Amy Hubbard.
Representatives of Lyons did not file a Claim against the State of New York,
but the Executor and the Executrix of the Estate of Lyons, Leslie Brum and Ann
Brum, brought an action in the Supreme Court, Onondaga County against Bradley K.
Hubbard and Patricia Dale Hubbard, the latter as Administratrix of the Estate
*of Lisa A. Hubbard.
The plaintiffs in the Supreme Court action moved for summary judgment on the
issue of liability and by Bench Decision, March 16, 1998, the motion was
granted. (Claim, Exhibit B)
Thereafter a Judgment was entered in the Supreme Court action, pertinent parts
of which follow:
The above-captioned action having been regularly reached for trial...and a
written Decision having been duly made by the Honorable James C. Tormey
directing the entry of judgment as hereinafter provided:
NOW, on motion...attorneys for the plaintiffs...it is
ADJUDGED, that the plaintiffs, Leslie Brum and Ann Brum, Individually
and as Executor and Executrix of the Estate of Myrtle B. Lyons, Deceased, have
established their cause of action for wrongful death...in the
amount of ninety thousand dollars ($90,000.00); and it is further
ADJUDGED, that the plaintiffs are hereby entitled to costs in the amount
of seven hundred dollars ($700.00) and disbursements in the amount of three
hundred twenty dollars ($320.00) together with interest from April 3, 1998, to
the date of entry of this judgment thereon at the rate of nine percent (9%) per
annum in the amount of four thousand eight hundred fifty-nine and sixty-one
cents ($4,859.61), for a total judgment in the amount of ninety-five thousand
eight hundred seventy-nine and sixty-one cents ($95,879.61); and that the
plaintiffs have execution therefor. Dated: November 10, 1998.
(Cl. Ex. 1 [emphasis added])
A Satisfaction of the aforedescribed Judgment was executed by Leslie Brum and
Ann Brum on November 22, 1998. (Cl. Ex. 12)
The written Decision of Justice Tormey, mentioned in the judgment, is not
before this Court, nor are the factual submissions presented to him, upon which
he rendered his written Decision.
The State does not argue that Lyons should share responsibility for the accident
in any way. It is the State's position, however, that the pecuniary loss
suffered as a result of Lyons' death was not simply less than $90,000, it was
zero. The proof presented at the trial of this Claim addressed this
Two witnesses testified on behalf of the Claimants, Leslie Brum, a nephew of
Lyons and William C. Blanchfield, Ph.D., an economist. Michael J. Vernarelli,
Ph.D., an economist, testified on behalf of the State, by videotape. The
videotape of this witnesses' testimony is in evidence as State's Exhibit G and a
transcript of his testimony is in evidence as State's Exhibit H.
Lyons was born on October 11, 1911 and on October 21, 1995, the date of the
accident and the date of her death, she was just over 84 years. Lyons had
married at age 49 and her husband died around 1982. They had no children. She
enjoyed dual United States and Canadian citizenship. Lyons worked most of her
adult life as a waitress in Westchester County and, when she retired, she moved
to Canada. On the day her life ended she was driving to New York City, alone,
to visit friends.
In their respective analyses, the Claimants' economic expert and the State's
economic expert were in commendable agreement with regard to a number of factors
which they considered in arriving at their respective estimates of the pecuniary
loss triggered by Lyons' death. They agreed that Lyons' life expectancy at the
time of her death was seven years, they agreed on the amount of lost pension
income that Lyons would have been paid during those seven years, had she not
died, almost to the dollar,
they agreed, in reaching the lost pension income estimate, that pensions paid
would have increased by three percent per year over the seven
Where they diverged, radically, was in
their estimates of what Lyons would have consumed annually, during those seven
years. In arriving at his estimate of Lyons' consumption, the Claimants'
appraiser relied in great part on what he was told by Mr. Brum, as well as
publications of the United States Department of Agriculture. The State's
appraiser relied on what are referred to as the Patton-Nelson Tables. In other
words, Claimants' appraiser incorporated, in his estimate of consumption, actual
consumption data funneled through Mr. Brum, whereas the State's appraiser relied
on a statistical average. Following these respective paths, the Claimants'
economist concluded that Lyons consumed 35.9 percent of her income on an annual
basis, whereas the State's economist concluded that she consumed 89.2 percent of
her income on an annual basis. In order to understand this stunning divergence,
it will be necessary to review Mr. Brum's thoughts on Lyons' consumption,
including his views on her health.
Mr. Brum thought Lyons' health
Indeed, having been asked by counsel about an "anecdote" discussed between them,
he testified that he had purchased approximately six cords of firewood for Lyons
shortly before her death and that she helped split the wood. He recalled that
she had "the ax in one hand and a little sledge [sic
] in the other one".
With regard to her life expectancy, Mr. Brum noted that Lyons had a number of
relatives that had reached the century mark. Mr. Brum testified that Lyons
owned a car at the time of her death, for which she had paid cash. He observed
that Lyons "liked her little wood fireplace" and that, since she burned wood,
she expended less than $200 per year for heating oil for the furnace to heat the
residence which she owned. He thought her garden "larger than she needed". He
opined that health care in Canada was "free" including, for seniors such as
Lyons, "free prescriptions".
Mr. Brum further testified that Lyons lived approximately one mile from his
residence and that he saw her "most every day". He recalled that Lyons "looked
after" his son which enabled his wife to return to work. He estimated that he
and his wife would eat at Lyons' residence or she at theirs "say two times a
week". He recalled that Lyons gave him "around $20,000" some years ago to begin
a business and that she made a major contribution when he purchased a houseboat.
Both economic experts recognized that, at the time of Lyons' death, her capital
assets passed to those survivors who suffered or may have suffered a pecuniary
loss as a result of her death. In other words, both recognized that the income
that was generated by her accumulated assets would have devolved, upon her
death, to her survivors and that, in reference to that income, the survivors did
not suffer a pecuniary loss.
Claimants' economic expert testified that he had "many conversations" with Mr.
& Mrs. Brum with regard to Lyons' consumption and that Mr. & Mrs. Brum
"looked for the records, etc." with regard to amounts expended for taxes and
He used a U.S. Department of Agriculture publication to estimate Lyons' annual
food consumption. Based on these two sources, the Brums and the U.S. Department
of Agriculture, he concluded that Lyons expended some $2,178 annually for
expenses other than food and $2,645 for food
for a total of $4,823. He divided this sum by $13,423, Claimant's total annual
pension receipts (expressed in United States dollars) and arrived at his
consumption percentage of 35.9 percent. Based on these assumptions, the
Claimant's economic expert concluded that Lyons would have consumed $38,032 of
the total pension benefits of $105,940 that she would have received during the
seven years had her life not been shortened. Thus he concluded that there was a
net pecuniary loss based on a seven year life expectance of $67,908 (i.e.,
$105,940 less $38,032). Via the same mathematical process, he projected a net
pecuniary loss of $101,597 based on the assumption that Lyons would have lived
ten years had her life not ended at the time of the
Claimant's economic expert testified that he learned from Mr. & Mrs. Brum
that Claimant owned her residence free and clear and that she expended nothing
for medical care. He factored this information into his analysis.
Claimant's economic expert was asked about the Patton-Nelson tables utilized by
the State's economic expert and he opined that it was better "to consult the
family and get more accurate estimates from them".
On cross-examination, Claimant's economic expert was asked what "categories" he
considered in calculating personal consumption and he mentioned food, medical
care, housing costs, entertainment, taxes and clothing. He then agreed that
transportation would be an expense. He thought the personal expenses such as
toothpaste and hair spray and "things of that sort" were "probably" included in
his food estimate. Asked if it would not have been better to utilize the actual
expenses incurred by Lyons for food he responded, "That's a good question. The
simple answer is that I asked the Brums that question and they could not give me
an accurate idea".
Interestingly, Claimant's economic expert was asked if he testified in the
Supreme Court lawsuit brought by the Brums against the Hubbards and he testified
that he did not. Asked if he submitted "a report" in that lawsuit, he responded
that he had and that it was "exactly identical" to the report that he produced
in this Court.
The State's economic expert concluded that Lyons' assets generated income of
$5,413, per annum, apart from her pension income, and he projected that she
would have received that sum, annually, during the seven years of her life
expectancy had her life not ended, for a total of $37,891. (St. Ex. E) He
testified that he based this estimate on Lyons' 1994 tax return and that the
$5,413 represented Canadian income of $7,498, converted to United States income.
Asked why he projected a constant annual income of $5,413 for the entire seven
years, the State's economic expert responded, "What I conclude is that Ms. Lyons
would have been consuming a large portion of her earnings. A very high portion,
close to 100 percent of her earnings. Consequently she wouldn't have been
necessarily adding substantial amounts to her savings....So, in essence, what
I'm saying is that her savings level...would have remained basically the same".
(St. Ex. H, p 20) Asked about consumption categories that he considered he
responded, "We looked at the general categories of items that an individual
would be spending on himself or herself. They included food, housing, apparel,
transportation, entertainment, personal care, health care and then there's a
small category called miscellaneous". (St. Ex. H, p 22) He then explained that,
in his view, the Patton-Nelson tables give "percentages for consumption by
individuals in terms of family size and income levels....And using the table
contained in that report I determined that - - that Ms. Lyons' personal
consumption would be 89.2 percent". (St. Ex. H, p 25) Asked, if in his opinion,
the distributees of Lyons suffered an economic loss as the result of her death
he responded, "My opinion is that as a result of Ms. Lyons' death, her
distributees did not suffer any economic loss". (St. Ex. H, pp 27-28) He
explained that he reached this view by subtracting "personal consumption from
total income" (St. Ex. H, p 28), and by total income he meant not only pension
income but also interest income of $5,413. For example, for the first year
after Lyons' death he estimated pension income would have been $13,826 and
interest income of $5,413 for total income of $19,239. Of this latter sum he
concluded that Lyons would have consumed 89.2 percent or $17,161 leaving a
balance unconsumed which he labeled "Residual" of $2,078. (
, St. Ex. E) He followed this same procedure for all seven years and
totaled the results as follows: pension income at 89.2 percent: $105,939;
interest income: $37,891; total income: $143,830; personal consumption:
$128,296; and residual: $15,534. (see
, St. Ex. H) He explained,
So in order to determine whether there was an economic loss...to the
distributees...it is important to compare what the residual figure would be from
the interest income. In other words, we would have to subtract interest income
from the residual figure to figure the net loss to the distributees....When we
make that calculation we notice that the interest income was actually greater
than the residual income. What that means is - - and this sounds very
crass...but nevertheless, what this implies is since the interest income is
greater than the residual income the distributees are actually financially
better off as a result of Ms. Lyons' death...They're certainly not worse
On cross-examination, the State's economic expert agreed that he did not factor
in funeral expenses in his analysis and that he did not talk to Mr. & Mrs.
Brum with regard thereto. He could not break down his consumption percentage of
89.2 percent into separate percentage categories such as food, housing,
transportation, entertainment and the like. (St. Ex. H, pp 39-40) He agreed
that the Patton-Nelson tables included housing expenses such as utilities, rent
and/or mortgage expense, as well as "electrical payments and various other
things, refuse pick-up. A whole bevy of things". (St. Ex. H, p 52)
Further on cross-examination, the State's economic expert agreed that using his
consumption percentage would leave a residual amount of cash assets each year of
10.9 percent. He was then asked "So isn't it safe to say...that the amount she
had invested...would go up based on the figure 10.9 every
and he responded, "No, not necessarily. She would have had to put that in her
savings account. She could have left it in her checking account". (St. Ex. H,
Although the rule may well seem harsh to some, damages for
pursuant to Estates Powers and Trust Law (EPTL) §
5-4.3 (a) are limited to "fair and just compensation for the pecuniary injuries
resulting from the decedent's death to the persons for whose benefit the action
is brought". Those pecuniary injuries frequently include loss of inheritance or
the loss of voluntary assistance as well as funeral expenses (see
§ 5-4.3 [a]) but not grief or loss of companionship. In short, what this
Court must determine is the "reasonable expectancy" (Loetsch v New York City
., 291 NY 308, 311) of future assistance and/or support that the
survivors of Lyons would have enjoyed, had she survived her normal life
In the Court's view, there is simply no question that, of the two methods of
estimating Lyons' consumption of income, the path followed by the Claimants'
economic expert can be more probative, that is Lyons actual consumption
experience, rather than the State's economic expert's statistical profile.
Unfortunately, apparently through no fault of his own, the Claimant's economic
expert was stopped on the path before any rational conclusions with regard to
Lyons' consumption could be reached. In other words, a few anecdotal bits of
information about Lyons' consumption in some recognized area of consumption, but
not all, simply cannot form a solid basis for estimating overall consumption.
If actual consumption, as opposed to a statistical estimate of consumption, is
the route taken, then it must be completed. In the Court's view, that would
hardly have presented an insurmountable task. Numerous examples illustrate the
effect of not completing the task. If Lyons did, in fact, heat her residence
for $400 a year, thereby keeping it comfortable throughout a Canadian
, it is difficult to believe that expenditures for heating oil and/or firewood
could not have been traced quite easily. The same is true for electricity and
upkeep of the residence.
Lyons owned a
car. Indeed, she was driving herself to New York City at the time of her death.
One can reasonably infer that the car was insured and that she paid for gas and
periodic service maintenance charges in order to keep the car on the road.
Those expenses are not part of her actual consumption estimate. The list could
Of course, the best way of arriving at the amount of income which remained
unexpended at the end of each year, what the State's economist referred to as
the "residual", would have been to simply look at Lyons' records. Since it is
unlikely that she stashed her savings in her mattress, in all likelihood she
placed those residuals in a bank(s) or otherwise invested them. It is almost
inconceivable that records were not available and that those records would not
have clearly established the degree to which Lyons did not consume her annual
income, prior to her death. If we were to accept the estimate of Lyons'
consumption, other than food, in the amount of $2,178 which, according to the
Claimant's economist's report was "from Mr. Brum" (Cl. Ex. 2, Ex. A) then we
would be also concluding that for the myriad of expenses that she incurred,
including household, transportation, clothing, entertainment, etc. she expended
less than $6.00 a day. Yet, her per diem electrical expense was about $1.79 and
her heating expense almost certainly more than that.
It will be recalled (
, pp 9-10) that the State's economist concluded that the
survivors of Lyons sustained no pecuniary loss because the interest income that
they began to receive at the time of her death, $5,413 per annum, far exceeded
the residual amount that Lyons would have saved on an annual basis had she
, St. Ex. E) In other words, since Lyons died, her
survivors received $37,891 over her projected 7 year life expectance whereas,
according to the State's expert, she would have saved, at best, $15,534. (St.
Ex. E) Both economic experts concluded that her interest income was generated
from cash assets, in one form or another, in the amount of approximately
$100,000. In point of fact, the Claimant's economic expert estimated Lyons'
income, other than from her pensions, at "around $4,000 a year". Even that
amount, over seven years would have generated income of $28,000, well in excess
of the total "residual" savings projected by the State's economic expert for
those seven years in the amount of $15,534. But things get worse, neither
appraiser weighed the economic effect of the sale of Lyons' residence after her
death for $109,000. Presumably that asset, converted to cash, generated income
comparable to the non-pension income that Lyons was receiving at the time of her
death, based on $100,000 in liquid assets. Needless to say, the income
generated from investment of the proceeds of the sale of the house enured to the
benefit of Lyons' survivors.
Mr. Brum testified that Lyons was in good health and photographs of her taken
shortly before her death (see, Cl. Ex. 10 and 11) support this view, since they
show what appears to be a vibrant, healthy woman. It would not be unreasonable
to conclude, therefore, that she would have survived more than seven years. The
sober fact remains, however, that the residuals that she would have accumulated
during those additional years, that is money that she would have saved, would
still have been eclipsed by the interest income that her survivors received as a
result of her untimely death.
There is no doubt that Mr. & Mrs. Brum enjoyed a warm and supportive
relationship with Lyons as evidenced, for one thing, by the fact that Lyons
cared for the Brum's son, enabling Mrs. Brum to return to work. However, it
cannot be inferred from the proof presented in this Court that this kind of
support, which clearly had a pecuniary aspect, would have continued had Lyons
life not ended untimely. In point of fact, Mr. Brum testified that at the time
that he observed Lyons split some wood he was pursuing that task with his son.
Based on the proof presented, this Court cannot find that Lyons' survivors
suffered loss of support or voluntary assistance caused by Lyons' death. The
only concrete evidence of voluntary assistance described by Mr. Brum was the
fact that Lyons cared for his son while his wife worked, but as pointed out,
there is no proof that that type of support would have continued during the
years subsequent to Lyons' death. It is true that Lyons made substantial gifts
to Mr. & Mrs. Brum prior to her death but there is no pecuniary loss which
stems from this, because the source of the funds which purchased those gifts and
which may have served as a source for future gifts had Lyons not died, passed to
her survivors at the time of her death.
While other States now permit recovery for loss of society (Sea-Land Servs.
v. Gaudet, 414 U.S. 573, 587, n. 21, 94 S.Ct. 806, 816, n. 21, [listing
jurisdictions]), New York since its first wrongful death statute has steadfastly
restricted recovery to "pecuniary injuries," or injuries measurable by money,
and denied recovery for grief, loss of society, affection, conjugal fellowship
(Gonzalez v NY City Hous Auth
, 77 NY2d 663,
Funeral expenses incurred as a result of the services of "Fred D. Knapp &
Son" of Greenwich, CT amounted to $8,000. (Cl. Ex. 3, Ex. D) It is reasonable
to infer that this $8,000 funeral expense was in United States dollars.
Crass though it may seem (and if crass it is, it is because of the current
state of the law), the Court finds that the only pecuniary loss suffered by
Lyons' survivors as a result of her untimely death is the funeral expense in the
amount of $8,000. (
, Cl. Ex. 3, Ex. D)
While it is true that this Claim for contribution accrued on the date payment
was made in the Supreme Court Action (cf.
, Bay Ridge Air Rights v State of New York
, 44 NY2d 50),
the Court views the statutory interest awarded therein as an item of damage and
will award interest on the award herein from the date of
The Court recognizes that the Lyons' estate was awarded costs and disbursements
against Bradley K. Hubbard and the Estate of Lisa A. Hubbard in the Supreme
Court Action. (
, p 3) The Court has not included those sums in this award,
since costs and disbursements cannot be awarded by this Court in a Claim of this
, Court of Claims Act § 27) The Court notes that, had
the Lyons estate brought a direct action against the State in this Court, costs
and disbursements could not have been awarded.
Claimants are awarded damages in the amount of $6,400 (i.e., 80% of $8,000)
with statutory interest thereon from October 21, 1995.
May 24, 2000
HON. JEROME F. HANIFIN
Judge of the Court of Claims
There was no mention at this trial of conscious pain and suffering post-impact
(cf. Cummins v County of Onondaga
, 84 NY2d 322) or even of
pre-impact terror (Pullman v Pullman
, 216 AD2d 886).
Although unclear from the proof presented during the trial of this Claim, the
Court infers that Bradley K. Hubbard, Lisa A. Hubbard's father, was a named
defendant because he was the licensed owner of the car operated by Lisa A.
Hubbard at the time of the accident.
In a Post-Trial Brief, Claimant's counsel states, "The underlying decision of
the Hon. James Tormey, J.S.C. came about as a result of a trial on stipulated
facts regarding the economic loss suffered by the Estate of Myrtle Lyons. Judge
] Tormey ultimately found that the Estate of Lyons suffered an
economic loss of $90,000 as a result of Mrs. Lyons' death on October 21,
The Claimants' appraiser's estimate of lost pension benefits over the seven year
life expectancy was $105,940, the State's economist's comparable figure was
The Claimants' appraiser also projected a pecuniary loss based on a life
expectancy of 10 years.
Unless otherwise indicated, all quotations are from the Court's trial notes or
from the trial electronic recording cassettes.
With regard to heating costs, Claimants' economic expert testified "according to
Mr. Brum approximately $200 in oil payments per year and somewhere about that in
her share of the wood...they provided probably less than that but I estimated
$200 so a total of $400 in fuel costs".
Claimant's economic expert testified that this latter amount is 20 percent above
what he concluded the U.S. Department of Agriculture study indicated for a
Claimants' counsel rounded down.
Mr. Brum testified that, upon Lyons' death, her residence was sold for $109,000,
which suggests that it was not a modest little cottage.
Claimants' Exhibit 5 in evidence, is a ‘SECOND NOTICE TO ADMIT" served on
the State pursuant to CPLR Section 3123. It recites in pertinent part: "1. The
Estate...incurred utility expense in the amount of $174.21. A copy of the
invoice reflective of such is annexed as Exhibit A. 2. The Estate...incurred
home heating oil expense in the amount of $280.62. Copies of the invoices
reflective of such are annexed as Exhibit B". Exhibit A attached to the notice
to admit is a "QUARTERLY BILL" for electricity for a 97 day period from July 6,
1995 to October 11, 1995 in the amount of $174.21. Annualized, this would
indicate a total electrical bill of approximately $655 or $1.79 per day.
Exhibit B, attached to the notice to admit consists of two heating oil invoices,
one dated January 23, 1995 in the amount of $91.78 and one dated February 22,
1995 in the amount of $188.84. This would indicate that heating Lyons'
residence for approximately one month, cost $188.84, apart from fire wood
expense. February is usually the coldest month, but even so, $11.16 for the
balance of the winter? Clearly, Mr. Blum's expense estimates must be viewed