New York State Court of Claims

New York State Court of Claims

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.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: JAMES E. SHOEMAKER, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 24, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

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 scene.[1]
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.[2]
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 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 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.[3]
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 issue.

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,[4]
they agreed, in reaching the lost pension income estimate, that pensions paid would have increased by three percent per year over the seven years.[5] 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 "excellent".[6]
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 fuel.[7]
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[8] 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 accident.

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. (
see, 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 the 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 off.

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 year?"[9]
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, p 66)

Although the rule may well seem harsh to some, damages for
wrongful death 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, EPTL § 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 Omnibus Corp., 291 NY 308, 311) of future assistance and/or support that the survivors of Lyons would have enjoyed, had she survived her normal life expectancy.

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 winter[10]
, 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.[11] 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 go on.

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 (
see supra, 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 survived. (see, 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 and consortium...

(Gonzalez v NY City Hous Auth, 77 NY2d 663, 667-668)

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. (
see, 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 death.

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. (
see supra, 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 nature. (see, 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
Binghamton, New York

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 [sic] 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, 1995".
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 $105,939.
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 single female.
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 with caution.