New York State Court of Claims

New York State Court of Claims

BLAKESLEY v. THE STATE OF NEW YORK, #2000-005-002, Claim No. 89609


Synopsis



Case Information

UID:
2000-005-002
Claimant(s):
ROBIN A. BLAKESLEY and ERIC BLAKESLEY
Claimant short name:
BLAKESLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
89609
Motion number(s):

Cross-motion number(s):

Judge:
Donald J. Corbett, Jr.
Claimant's attorney:
MORAN & KUFTA, P.C.By: James J. Moran, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
GOTTESMAN, WOLGEL, SECUNDA, MALAMY & FLYNN, P.C.By: Steven Weinberg, Esq.
Third-party defendant's attorney:

Signature date:
August 9, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This order incorporates the Structured Judgment Decision filed contemporaneously herewith.

The damages awarded to Robin Blakesley are as follows:
Past pain and suffering $180,000
Future pain and suffering 774,000
Future medical needs 363,898
Past loss of earnings 77,016

Future loss of earnings[1]
92,751

The parties have stipulated to, and I adopt, the discount rate of 6.4%.[2]
The total future damages awarded, prior to attorney's fees, amount to $1,230,649, consisting of $92,751 for future lost earnings; $774,000 for future pain and suffering, and $363,898 for future medical needs. Since the first $250,000 of future damages are not subject to periodic payment, the future awards subject to periodic payments are reduced by the proportionate lump sum (non-structured) award, and as determined herein, proportionately reduced by the allocation of litigation expenses, and the gross calculation (prior to any reduction to present value) is as follows:

Future lost earnings - $92,751 less $18,842 (7.5% of $250,000) and $1,884 (7.5% of $25,000) equals $72,025, for a 17.9-year work life expectancy, leaving a first-year annuity[3], prior to consideration of attorney fees, of $4,023.

Future pain and suffering - $774,000 less $157,234 (62.9% of $250,000.00) and $15,723 (62.9% of $25,000) equals $601,043, payable over the maximum statutory period of ten years (CPLR 5041[e]), prior to consideration of attorney fees, for a first-year annuity of $60,104.

Future medical needs - $363,898 less $73,924 (29.6% of $250,000.00) and $7,393 (29.6% of $25,000) equals $282,581, payable over 43.3 years, prior to consideration of attorney's fees, for a first-year annuity of $6,526.

Each annuity payment after the first year payment is to be increased each and every year of the life of the annuity by four percent, compounded annually (CPLR 5041[e]). The present value is determined by the discount rate of 6.4% agreed upon by the parties.

Payable to Claimant now as a lump sum will be
$180,000 for past damages for pain and suffering, $77,016 for past lost earnings, $25,000 for litigation expenses plus the first $250,000 of future damages, comprised of lost earnings of $18,842 (7.5% of $250,000); $157,234 for pain and suffering (62.9% of $250,000), and $73,924 for medical needs (29.6% of $250,000), for a lump sum sub-total of $532,016.
The total present value of the annuities for (1) future lost earnings is
$59,809; (2) future pain and suffering is $543,561, and (3) future medical needs is $181,581. Accordingly, attorney's fees, statutorily calculated in accordance with Rohring v City of Niagara Falls (84 NY2d 60), are :
[1] For lump sum and past damages - 33% of past lost earnings of $77,016 or $25,672; past pain and suffering of $180,000 or $60,000, and the first $250,000 of future damages or $83,333, for a total of $169,005;

[2] Claimant's counsel is also entitled to 33% of future lost earnings of $59,809, or $19,936; future pain and suffering of $543,561, or $181,187, and future medical needs of $181,581, or $60,527, for a total of $261,650.

To compensate recovering parties for lost interest on money they were entitled to receive at the time liability was determined, CPLR 5002 controls. The recovering party is awarded interest on the "total sum awarded", including future damages. The Court of Appeals in
Rohring v City of Niagara Falls, supra, determined that awards of future damages are "... properly treated as a debt owed entirely as of the date of the liability verdict ..." and that interest should be "... charged against the present value of future damages from that date under CPLR 5002...." (also see, Pay v State of New York, 87 NY2d 1011).
Therefore, I utilize the following for the purpose of calculating post-verdict interest. The present value of the annuities directed herein, after attorney's fees, amount to $39,873 (future lost earnings); $362,374 (future pain and suffering), and $121,054 (future medical needs) or
$523,301. The total lump sum non-structured award consists of $338,010 (net past and lump sum damages, excluding attorney fees) and attorney fees for the lump sum and past damages of $169,005 and on the present value of the annuities for future damages of $261,650 for a total of $430,655. This amounts to a lump sum payment due Claimant of $793,665 (after adding the $25,000 in litigation expenses), to which the present value of the annuities after attorney fees of $523,301 is added, for a total of $1,316,966.
The parties agree that interest accrues from the date that the damages were determined on August 17, 1998 (
Love v State of New York, 78 NY2d 540, 545), and on the per diem rate of interest of $324.51[4] (see Pay v State of New York, supra at 1013). Claimant urges that the per diem interest rate of $357.21 should be applied from the date of my award, September 30, 1999, to the date of entry of judgment. Claimant argues that it is entitled to interest on the aggregate of the total award from the date of liability together with all interest from August 17, 1998, or an additional $132,724.59 (calculated as 409 days at $324.51 per day) pursuant to CPLR 5002, which holds that interest "shall be recovered upon the total sum awarded, including interest to verdict, ... from the date the verdict was rendered ... to the date of entry of final judgment" (emphasis supplied). While Defendant demurs that such calculation is an unfair compounding of interest, both the statute and the Fourth Department in Phillips v Catania, 188 AD2d 1029 (1992), appear to the contrary. Accordingly, I find that Claimant is entitled to interest of $357.21 per day from September 30, 1999 to the date of entry of judgment.
Accordingly, utilizing the agreed upon per diem of $324.51 for the 409 days from August 17, 1998 to September 30, 1999, Claimant is awarded pre-verdict interest of $132,724.59. Interest at $357.21 per day from September 30, 1999 to the date of entry of judgment will be computed by the Chief Clerk of the Court and included in the judgment. It is therefore

ORDERED, that a lump sum judgment be entered in favor of the Claimant in the amount of $793,665, consisting of:

Past pain and suffering: $180,000;
Past loss of earnings: 77,016;

First $250,000.00 of future damages: 250,000;
Attorney fees: future lost earnings: 19,936;

future pain and suffering: 181,187;
future medical needs: 60, 527;
Litigation Expenses
25,000
TOTAL $793,665 (R)


and it is further
ORDERED, that Defendant and its insurance carrier(s) shall "offer and ... guarantee the purchase and payment" of three annuity contracts that comply with this Order and the requirements of Article 50-B of the CPLR and specifically CPLR 5041(e), through a qualified insurance carrier approved by the superintendent of insurance, and which yield annual amounts, as follows:

(A) a "present value of the first annuity contract" after deduction of attorney fees, to wit, $39,873, for 17.9 years for future lost earnings, with the first annual payment of $2,682 (to be payable in monthly installments), with the monthly payments in each succeeding year to be increased by 4% per year (CPLR 5041[e]), and

(B) a "present value of the second annuity contract" also after deduction of attorney fees, to wit, $362,374, for ten years for future pain and suffering with a first annual payment of $40,070 (to be payable in monthly installments), with the monthly payments in each succeeding year to be increased by 4% per year (CPLR 5041[e]), and

(C) a "present value of the third annuity contract" after deduction of attorney fees, to wit, $121,054, for 43.3 years for future medical needs, with the first annual payment of $4,351 (to be payable in monthly installments), with the monthly payments in each succeeding year to be increased by 4% per year (CPLR 5041[e]),


and it is further
ORDERED, that the Clerk of the Court apply the appropriate simple (non-compounded) annual interest as calculated above at nine percent or $324.51 per day for the 409 days from August 17, 1998 to September 30, 1999, or $132,724.59, and $357.21 per day from September 30, 1999 to the entry of judgment herein for the Claimant (allocated at 65.4% to Claimant and 34.6% to her attorney[5]
), and it is further
ORDERED, that the annuity contracts shall be presented to the Court for approval pursuant to CPLR 5042, and copies provided to Claimant's attorney, within 30 days of service of a file-stamped copy of the decision and order herein, and it is further

ORDERED, that the Clerk of the Court or Comptroller apply an appropriate interest rate to compute the interest due Claimant on the present value of Claimant's portion of the future damage awards ($39,873, $362,374, and $121,054) from the date of entry of judgment through the date the first installment of the annuity contracts purchased pursuant to this Order is due by the Defendant to Claimant.

LET JUDGMENT BE ENTERED ACCORDINGLY.


August 9, 2000
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims



[1] The parties have agreed that the correct calculation of future loss of earnings is $92,751 not $121,015.
[2] Hearing Transcript (HT) p 23.
[3] Interestingly, this was described by Claimant's expert as a fictional or fictive annuity.
[4] HT, p 33.
[5] Attorney fees and litigation expenses total $455,655, which for purposes of interest, is 34.6% of the total award of $1,316,966.