New York State Court of Claims

New York State Court of Claims

BOGEN v. THE STATE OF NEW YORK, #2001-029-094, Claim No. 92429


Damages only 1) Wrongful death of 35 year old mother; pecuniary loss, parental nurture -husband and one child - $2,723,655. 2) Injuries to 8 year old girl - loss of 4 permanent teeth and fractured elbow - $325,000. 3) Injuries to decedent's husband - fractured clavicle and assorted other injuries - $175,000.

Case Information

CLIFFORD BOGEN, as Administrator of the Estate of MARY BOGEN, Deceased, JESSICA BOGEN, an infant by her Father and Natural Guardian, CLIFFORD BOGEN, and CLIFFORD BOGEN, Individually
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:
Finkelstein, Levine, Gittelsohn & PartnersBy: George M. Levy, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 23, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

By Decision filed May 18, 2000, Judge Andrew P. O'Rourke found the defendant to be solely responsible for the two-vehicle automobile accident of October 23, 1994 which resulted in Clifford and Jessica Bogen's injuries and the death of Mary Bogen. This Decision deals only with the issue of damages.

The claim sets forth six causes of action: (1) the decedent's estate seeks recovery for medical, hospital and funeral expenses, as well as the pecuniary loss to the distributees caused by the death of Mary Bogen; (2) damages for the conscious pain and suffering of the decedent; (3) damages for the injuries sustained by Clifford Bogen (decedent's husband); (4) damages for the injuries sustained by Jessica Bogen (decedent's daughter); (5) a claim by the decedent's husband for loss of his wife's services, society and consortium; (6) damages to Clifford as a result of the loss of his daughter's (Jessica) services, society, companionship and love and also for expenses incurred for Jessica's future medical procedures.

Under Estates, Powers and Trusts Law (EPTL) § 5-4.3(a), damages for wrongful death 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" (emphasis supplied). The Courts of this State have strictly adhered to the statutory restriction that recovery be limited to pecuniary or economic losses (see, Carrick v Central Gen. Hosp., 51 NY2d 242). Thus, neither the grief suffered by survivors nor the loss of the decedent's companionship is compensable (see, Liff v Schildkrout, 49 NY2d 622; see also, Turano Practice Commentaries, McKinney's Consol Laws of NY, Book 17B, EPTL § 5-4.3, p. 439).
In fashioning a wrongful death award in accordance with the statute, the Court may consider evidence of the "reasonable expectancy" of financial support, gifts and inheritance that would have inured to those on whose behalf the claim was filed had the decedent lived (
Loetsch v New York City Omnibus Corp., 291 NY 308). Factors traditionally considered by the courts include "the age, health and life expectancy of the decedent at the time of the injury; the decedent's future earning capacity and potential for career advancement; and the number, age and health of the decedent's distributees" (Johnson v Manhattan & Bronx Surface Tr. Operating Auth., 71 NY2d 198, 203-204). The value of the decedent's past and future lost earnings may be measured by his or her gross income at the time of death (id.). Reasonable funeral expenses may also be recovered in the suit (see, EPTL § 5-4.3[a]).
Since its first wrongful death statute, New York 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 New York City Housing Auth., 77 NY2d 663; Liff v Schildkrout, supra). Where, as here, the claim is filed on behalf of the decedent's child, pecuniary injuries may also include the loss of parental nurture and care and the loss of physical, moral and intellectual training that could have been expected from the parent, had he or she been alive (Kenavan v City of New York, 120 AD2d 24, affd 70 NY2d 558; Plotkin v New York City Health & Hosps. Corp., 221 AD2d 425). In the State of New York, a parent has a legal duty to support his or her children until the child reaches the age of 21 (see Social Services Law § 101[1]).
The evidence adduced at trial established that the decedent, Mary Bogen, was born on January 10, 1959 (see Exh. 1) and at the time of her death had a life expectancy of 46.7 years (see Pattern Jury Instructions, Appendix A, Table A). The uncontroverted testimony of Jessica and Mr. Bogen was that Mrs. Bogen was an active, healthy, devoted mother who created a nurturing and structured home environment for her daughter, Jessica. The testimony established that Mrs. Bogen brought Jessica to Girl Scout meetings and a baton twirling club, that she read to Jessica on a nightly basis and helped Jessica with her homework. The testimony further established that Mrs. Bogen was the guiding force of Jessica's moral development as decedent and Mr. Bogen were of different religious faiths and they agreed Jessica would be raised in Mrs. Bogen's faith. The evidence established that Jessica regularly attended church with her mother, but since her mother's death she is not receiving the same moral guidance and has stopped attending church. Mr. Bogen stated that he does not feel qualified to continue Jessica's religious education. Jessica also became more withdrawn and feared for the life of her father.

Based upon the foregoing, the Court concludes that Jessica has suffered the loss of her mother's nurture and care and her established course of intellectual, moral and physical guidance, which undoubtedly would have continued beyond the time Jessica reached the age of majority. The love a mother has for her child is difficult to quantify and impossible to replace. The Court recognizes that the untimeliness of her mother's death has devastated what was Jessica's secure and happy childhood. The Court awards Jessica the sum of $450,000 for past loss of parental care and guidance (see,
Kubecka v State of New York, Claim No. 81781, filed July 14, 1998, Silverman, J.). As to future loss of parental care and guidance, the Court awards Jessica $800,000 (see, Bryant v New York City Health and Hosps. Corp., 250 AD2d 797; see also, Paccione v Greenberg, 256 AD2d 559).
We turn now to the pecuniary loss of lost income and household services of the decedent. Mr. Bogen testified that Mrs. Bogen had graduated from high school and had received her Bachelor's Degree from the State University of New York at Stoney Brook; that prior to her death she had worked as a secretary at various businesses and that she worked with a computer. Regarding Mary's work history, Mr. Bogen stated that from the time they were married in 1983 until Jessica was born in 1986, Mary was employed full-time as a secretary; that Mary remained home with Jessica for six months and then started to take some part-time "off-the-books" jobs. In 1989 when Jessica was three, Mary began full-time employment as a secretary at Pepsico. In 1993 Pepsico restructured and Mary's position was changed to a part-time executive secretary position and she was laid-off from her job about three to four months prior to the accident. The evidence established that at the time of her death, Mrs. Bogen was four months pregnant (see Exh. 2). Mr. Bogen stated that while he does not believe that he and Mary had a specific discussion regarding the issue of her return to work after the baby was born, he believed Mary would return to work as she did after Jessica was born, i.e. part-time for awhile and then full-time. Mr. Bogen further testified that Mary also worked in the home; that she performed all the household chores, including doing the laundry, the marketing, cleaning the house, cooking, taking care of Jessica - including transporting her to her various activities and also handled the family's finances, i.e. paying the bills and making sure the family did not overspend. Mr. Bogen stated that his wife was frugal with money.

Claimant called as an expert witness David Kennett, a Professor of Economics and Director of International Studies at Vassar College. Professor Kennett testified that he has taught Economics since 1975 and has been Chairperson of the Economics Department on two occasions. His
curriculum vitae was received into evidence as Exhibit 13.
Professor Kennett testified that he established three categories of loss as a result of Mrs. Bogen's death - lost wages, lost benefits and the loss of the household services that she provided the family. The witness stated that the Bogens had a lifestyle based upon two incomes; in making his calculations he assumed Mrs. Bogen would not return to work until the child she was pregnant with was five years old and attended school and she would stay in the Executive Secretary/Administrative Assistant field and that her labor market was Dutchess County, not Westchester County. He did not assume any promotion, new occupation or seniority raise and he increased her salary by 4.8% per year, which he stated is the average wage increase per year from 1946 to 2000; he also assumed Mrs. Bogen would retire at age 65. The witness stated that he prepared three different schedules projecting the anticipated loss of income and value of Mrs. Bogen's household services and ultimately the economic loss to the estate as a result of her death. The first schedule (Exh. 14) was prepared assuming Mrs. Bogen would return to work full-time in the year 2000 and work full-time until her retirement in 2024 at the age of 65. The second schedule (Exh. 15) assumes Mrs. Bogen would return to part-time employment in the year 2000 and work part-time until 2005 and then work full-time until retirement. The third schedule (Exh. 16) assumes that Mrs. Bogen would return to work as a part-time employee in the year 2000 and work part-time until retirement in 2024.

Professor Kennett stated his opinion with a reasonable degree of economic certainty that scenario 2 (Exh. 15) was the most likely scenario to have developed had Mrs. Bogen lived. In addition to lost wages per year, Professor Kennett determined a yearly amount of lost fringe benefits. In calculating his schedules, the witness assumed that when decedent worked part-time she would not receive a very generous benefits package. He stated, that using his most likely scenario (Exh. 15), part-time work for five years, then full-time work, Mrs. Bogen's total lost wages is $1,458,779 and the total lost fringe benefits is $423,409 for total lost compensation of $1,882,188. The witness further testified that in determining the value of Mrs. Bogen's household services, he used as a guideline a Survey Study of Income Dynamics and determined that the average amount of time a woman who does not have a job outside the home spends working on household chores is 33 hours per week and that the average amount of time a woman who does have a job outside the home spends working on household chores is 20.8 hours per week. In performing his calculations, Professor Kennett stated that he determined that the hourly wage for such services was $14.95 per hour plus benefits and that he increased the amount by 4.8% per year, as he did Mrs. Bogen's out-of-home income. Again, using the witness' most likely scenario, the value of Mrs. Bogen's work in the home totaled $860,241 for a combined total economic loss of $2,742,429 from 1994 to 2024 (see Exh. 15).

Professor Kennett also testified that in determining the actual loss to the estate, one has to estimate the amount of her income Mary would have spent on herself during her lifetime for food, clothes and the like; that he used a study that showed one's own consumption to be 14.3% for someone in the Bogen's income level of $70,000 to $80,000; that the consumption amount must be subtracted from the total economic loss to determine the loss to the Estate of Mrs. Bogen. Again, using his most likely scenario, the witness determined Mrs. Bogen's own consumption would be $459,275 and that the total loss to the estate as a result of her death was $2,283,154 (see Exh. 15).

On cross-examination, the witness stated that Mr. Bogen's projected income for 1994 was $32,000. He admitted that he had no basis for assuming the Bogens' joint income for the years 1994 through 1997 would be $70,000 to $80,000 and thus, no basis for the 14.3% consumption rate he used for Mrs. Bogen for those years. He further stated that the average underlying inflation rate since 1946 is about 4% per year, thus the real increase in wages is about .7 or .8 percent per year rather than his "nominal" increase of 4.8%.

The State did not present any expert economic testimony. The trier of fact is not compelled to accept the conclusion of an expert even when the opposing party does not call an expert on the issue or otherwise leaves the conclusion unchallenged (
Preston v Young, 239 AD2d 729; Galimberti v Carrier Indus., 222 AD2d 649).
The Court finds, based upon the preponderance of the evidence adduced at trial, that Professor Kennett's scenario 2 is the most realistic and the Court finds that Mrs. Bogen would have returned to work part-time in the year 2000 and full-time in the year 2005 and would have retired in the 2024 at age 65. However, the Court does not believe that a secretary's salary, even one employed by a huge international corporation, would increase at the levels computed by claimant's expert. At some point, the salary of any position reaches a level, above which it becomes economically non-viable for a company to pay. In effect, the value of a secretarial position, however skilled, will, at some point "top out". Professor Kennett omits this economic fact of life when he assumes a secretary will earn $103,619 in 2024 (see Exh. 15). Thus, we have made corrections we deem necessary to adequately compensate the decedent's estate for the loss of past and future wages and fringe benefits. The Court has also made adjustments it deems necessary to arrive at a reasonable computation for the loss of Mrs. Bogen's household services, as we are not bound by the economist's testimony as to the value of decedent's household services (see,
Baker v Sportservice Corp., 175 AD2d 654). We, therefore, find that the distributees suffered past lost wages and benefits of $11,400 and past lost value of household services of $132,900 and future lost wages and fringe benefits of $835,355 and future lost household services of $494,000. The amounts awarded by the Court for past and future lost wages and fringe benefits include a deduction made by the Court for claimant's personal consumption. No evidence was submitted at trial regarding medical or hospital costs for Mrs. Bogen or for funeral expenses. Therefore, no award is made for these items.
The second cause of action seeks recovery for the decedent's conscious pain and suffering prior to her death. The death certificate (Exh.1) and the autopsy report (Exh. 2) both established that Mrs. Bogen was pronounced dead at 4:13 pm on October 23, 1994. The claim alleges that the accident occurred at 3:18 pm on the same date. Claimant failed to present any evidence that Mrs. Bogen was conscious after the accident or that she suffered any pain prior to her death. Therefore, the second cause of action is dismissed.

The third cause of action seeks damages for the injuries sustained by claimant, Clifford Bogen. The evidence adduced at trial established that as a result of the accident, Mr. Bogen sustained a fractured left clavicle, a fractured right big toe, a fracture of the left little finger, a fractured septum, a left pneumothorax and multiple lacerations to his face (see Exh. 5). After the accident, Mr. Bogen stated he was in extreme pain and had difficulty breathing; that he was taken to Vassar Brothers Hospital in Poughkeepsie by ambulance. He was discharged from the hospital on October 27, 1994 (see Exh. 5, Hospital Record - Discharge Summary). While at the hospital, a chest tube was inserted to remove the air from his chest and re-inflate his lung. Surgery was performed by Dr. Celestino Sepulveda, a plastic surgeon, to remove glass from claimant's face and to stitch multiple lacerations on his face, lip and eyebrow. Dr. Sepulveda also set claimant's fractured septum.

Dr. Sepulveda testified that claimant has a 4½ centimeter avulsion of the eyebrow and a 3½ centimeter laceration in the cheek area. He also stated that he removed about 20 pieces of glass from claimant's face. The doctor stated that claimant's surgery was a success; that claimant does not look disfigured. However, his nose is not straight and some scars are visible. On cross-examination, the doctor admitted that the surgery results were about as good as he could have expected.

Claimant testified that he had a splint put on his pinky finger and had to wear a shoulder harness for the fractured clavicle for approximately six weeks. Claimant also testified that he attended physical therapy sessions for two to three weeks to regain strength in his shoulder. Claimant's treating orthopedic surgeon, Dr. William Kwock, testified that claimant's shoulder was placed in a "figure 8 brace" (Court's trial notes) and that approximately six weeks after the accident he suggested that claimant start physical therapy to "loosen and strengthen" the shoulder. Dr. Kwock opined that claimant's left shoulder did not regain its pre-injury strength and that this is a permanent condition. On cross-examination, Dr. Kwock stated that the injury does not interfere with claimant raising his arm above shoulder level, only interferes with him when he performs work above the shoulder level. Claimant further stated that he did not receive any physical therapy for his pinky or his toe and that since the accident, his right big toe now bends to the right.

Claimant testified that at the time of the accident he was a cabinet maker for a modular home company and that following the accident he found it very difficult to lift heavy objects above his shoulder, which were part of his everyday job duties. He stated he was out of work from October, 1994 until March, 1995 when he was cleared to go back to work. However, his employer was unable to hold his job for him.

Based upon the preponderance of the credible evidence adduced at trial, the Court finds that claimant suffered a fractured left clavicle, right big toe, left pinky finger and septum, as well as facial lacerations and a left pneumothorax. While claimant established that he did not work from October 23, 1994 until March, 1995 as a result of his injuries, there was no evidence presented as to lost wages. Therefore, no award can be made for past lost wages. For past pain and suffering the Court awards claimant $150,000. The evidence established that only the injuries to claimant's shoulder and toe are permanent, with the injury to the shoulder being the most serious. Therefore, on this cause of action, the Court also awards claimant $25,000 for future pain and suffering, for a total of $175,000.

The fourth cause of action seeks damages for the injuries sustained by Jessica Bogen. At the time of the accident Jessica was eight years old. The evidence adduced at trial established that as a result of the accident Jessica sustained a fractured left elbow, the loss of four upper front teeth, injuries to her face, a concussion and a fracture of the alveolar bone (see Exh. 8, St. Francis Hospital Record). Dr. Kwock testified that he treated Jessica in the Emergency Room at St. Francis Hospital; that he performed a closed manipulative reduction of Jessica's left elbow and placed it in a long arm cast (see Exh.8). Jessica testified that while at the hospital she received stitches in her bottom lip. Dr. Kwock stated that he removed the cast from Jessica's arm on November 23, 1994, that the healing process was satisfactory and that he last treated Jessica on December 9, 1994 when he recommended she go to physical therapy. He stated he found the elbow had progressed nicely and that a satisfactory result had been achieved. On cross-examination, the witness stated that Jessica's elbow had healed, that the bones were of normal length and that there was no continuing disability with regard to her left elbow.

The evidence established that as a result of the accident Jessica lost her four upper front teeth, the maxillary central and lateral incisors; that she has suffered an inability to properly bite, chew and swallow (see Exh. 10). The evidence also established that Jessica uses a retainer with false teeth because she cannot be fitted for permanent false teeth until after the age of 18, when she stops growing. Part of her orthodontic treatment included braces and orthodontic bands which Jessica testified were painful. Jessica stated that she is reluctant to smile because of her retainer and the fact that the false teeth are smaller than her real teeth. She also stated that other children make fun of her small teeth and retainer. She also testified that for three years there were no false teeth in front and the braces went across her other upper teeth so people could see her four teeth were missing.

Jessica testified that she went to the school counselor who referred her to Esther Ganz. Ms. Ganz is a Licensed Professional Counselor in the State of New Jersey and Jessica stated she has been seeing Ms. Ganz on a regular basis since January, 1999 and plans to continue to see her.

Claimant offered into evidence as Exhibit 12 and Court Exhibit 1 (respectively) the video-tape and accompanying transcript of the examination before trial of Ms. Ganz. The State objected to all portions of Ms. Ganz' testimony where she offered her opinion as to the psychological and/or psychiatric makeup of Jessica following the accident. The State objects to the testimony on the basis that Ms. Ganz has not been qualified as an expert in psychology or psychiatry. In opposition, claimant's counsel asserts that he is offering the testimony to establish that Jessica suffered emotional trauma as a result of the accident. Counsel relies on
Karasik v Bird (98 AD2d 359, 362) wherein the Appellate Division, First Department stated that a witness may testify as an expert if it is shown that he/she is skilled in the field or profession to which the subject relates and such skill was acquired from study, experience or observation.
Judge Smith in his dissenting opinion in
Price v NYCHA (92 NY2d 553, 562-563) stated:
"The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror" (
De Long v County of Erie, 60 NY2d 296, 307). The expert "should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable" (Matott v Ward, 48 NY2d 455, 459). The expert's opinion cannot be founded upon speculation or supposition (id., at 463).

A witness's qualification to testify as an expert rests in the discretion of the trial court and its determination will not be disturbed in the absence of serious mistake, an error of law of abuse of discretion (
Werner v Sun Oil Co., 65 NY2d 839; Meiselman v Crown Hgts. Hosp., 285 NY 389).
At her deposition, Ms. Ganz stated that she has a Master's Degree in Education in the field of counseling human development and is a certified specialist for the mentally ill and chemically addicted, as well as certified as a counselor for alcohol and drug abusers (see Court Exh.1, Pg. 4). The witness stated that she has worked in this field for 17 years, spending 9 of those years in private practice (id. at Pg. 15). On cross-examination, the witness stated that she also has a Bachelor's Degree in Education and is not a licensed psychologist (id at Pg. 27). Ms. Ganz further testified that in counseling Jessica, she does not call upon her particular expertise as a Certified Alcohol and Drug Counselor (id. at Pgs. 27-28).

The Court finds, based upon the testimony adduced at the deposition, that Ms. Ganz' testimony regarding Jessica's diagnosis and prognosis went far beyond her training and experience and rendered an opinion regarding Jessica's mental and emotional status. No foundation was established demonstrating Ms. Ganz's qualification to engage in such an activity. From her testimony, it appears that Ms. Ganz did not have any formal training in psychology or the behavioral sciences which would qualify her to diagnosis Jessica's mental state or offer a prognosis as to her future mental state. Therefore, the State's motion to strike that portion of Ms. Ganz's testimony regarding her opinion as to Jessica's psychological and/or psychiatric makeup, upon which the Court reserved opinion at trial, is now granted and the testimony is stricken as the Court finds the witness is not qualified as an expert in that field.[1]

Based upon the preponderance of the credible evidence adduced at trial, the Court finds that Jessica Bogen suffered a fractured left elbow, a fractured alveolar bone, the loss of four upper front teeth, facial injuries and a concussion. For past pain and suffering, the Court awards Jessica Bogen $225,000 (see,
Mancusi v Miller Brewing Co., 251 AD2d 265) and $100,000 for future pain and suffering associated with the loss of her four upper front teeth for a total of $325,000.
The fifth cause of action seeks recovery for Clifford for the loss and impairment of his spouse's services, society and consortium. The Appellate Division, Third Department, in
Sand v Chapin (238 AD2d 862, 864) stated: "this State does not recognize a ‘common-law cause of action on behalf of the surviving spouse for permanent loss of consortium due to the wrongful death of his or her marital partner' " (see, Liff v Schildkrout, 49 NY2d 622, supra at 633; see also, Gonzalez v New York City Housing Auth., 77 NY2d 663). Further, the Court of Appeals in Liff (supra at 634) stated that a widow's loss of consortium is limited to reflect the loss of consortium during the period of decedent's conscious pain and suffering. Here, there was no proof adduced as to the length of decedent's pain and suffering. Thus, this cause of action must be dismissed.
The sixth cause of action seeks recovery for Clifford as the parent of the infant claimant, Jessica, for the loss of her aid, services, society, companionship, love and for Jessica's future medical expenses. At trial, claimant presented no proof as to what chores Jessica performed prior to the accident (such as setting the table or taking out the garbage) which she was unable to perform after the accident. The evidence established that Jessica became more attached to her father after the accident than she was prior to it.

We turn now to the issue of Jessica's future medical expenses. Jessica and Clifford both testified that Jessica would need dental surgery to make a permanent bridge for her missing four teeth after she turns 18 and stops growing. However, Dr. David S. Ostreicher's (Orthodontist) letter dated October 30, 1998 (Exh. 10) does not state what the estimated cost of this bridge or appliance would be. There was no evidence offered as to the estimated or actual cost of the appliance. An award for future medical expenses may not be based upon mere speculation (
Faas v State of New York, 249 AD2d 731; Cramer v Kuhns, 213 AD2d 131, lv dismissed 87 NY2d 860; Buggs v Veterans Butter and Egg Co., 120 AD2d 361). Here, based upon the lack of evidence regarding Jessica's future medical expenses, any award by this Court would be based upon uninformed speculation. Therefore, based upon a failure of proof, the sixth cause of action must also be dismissed.
Accordingly, claimants are entitled to a total award of $
2,723,655 for damages for the wrongful death of Mary Bogen, with the breakdown as follows:
Loss of Parental Nurture (Jessica) $ 450,000
Lost Past Wages 11,400
Lost Past Household Services
PAST TOTAL: $ 594,300

Loss of Parental Nurture (Jessica) $ 800,000

Loss of Future Wages 835,355

Loss of Future Household Services
FUTURE TOTAL: $2,129,355


Interest on the past wrongful death award (which the Court finds to be in the sum of $594,300) shall run from July 23, 1997 [2]
(see, Milbrandt v A.P. Green Refractories Co., 79 NY2d 26, 34-38). Interest on the total wrongful death award in the amount of $2,723,655 will accrue from April 16, 2000 in accordance with the law (see, Love v State of New York, 78 NY2d 540).
With respect to the claim for personal injuries, Clifford is awarded $150,000 for past pain and suffering and $25,000 for future pain and suffering, for a total of $175,000. Jessica is awarded $225,000 for past pain and suffering and $100,000 for future pain and suffering, for a total of $325,000. With respect to the awards for personal injuries, interest is to be awarded on said amounts from the date of the Court's liability decision -
April 16, 2000 (Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New York, supra).
The Chief Clerk is directed to stay the entry of judgment in accordance with this decision until a hearing is held pursuant to CPLR Article 50-B. The parties are directed to contact the Court to schedule said hearing. All trial motions not heretofore decided are now deemed denied.

August 23, 2001
White Plains, New York

Judge of the Court of Claims

[1] Notwithstanding this limitation, the Court does accept Ms. Ganz's identification of symptoms and the trained observations regarding Jessica's behavior. While we do not accept her diagnosis or prognosis, those functions are more closely akin to a nurse or para-professional who may observe and describe symptomology, but not synthesize diagnosis.
[2]Given that past damages generally accrued continuously over the period before trial, there are no discrete, ascertainable dates from which to run interest thereon. Thus, the Court has chosen the approximate midpoint between occurrence and trial as a reasonable intermediate date (Gottlieb v State of New York, Claim No. 82167, filed December 29, 1999, O'Rourke, J., p 8, n 4; Mann v State of New York, Claim No. 78186, filed September 25, 1995, Rossetti, J., p 16, n 13).