New York State Court of Claims

New York State Court of Claims

D'AMATO v. THE STATE OF NEW YORK, #2002-019-028, Claim No. 98620


Court previously apportioned liability 20% to the State; 20% to Claimant; and 60% to the driver of the speeding car after automobile accident. After trial on damages and after apportionment, Claimants were awarded as follows: Susan D'Amato the sum of $308,222.38 for past damages and the sum of $1,458,676.64 for future damages. Joseph D'Amato was awarded on his derivative claim - $49,879.60 for past damages and the sum of $159,055.80 for future damages.

Case Information

JOSEPH D'AMATO, Individually and as the Guardian of SUSAN D'AMATO
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:
CITAK & CITAK, ESQS.BY: Donald L. Citak, Esq., of counsel
Defendant's attorney:
BY: Denis J. McElligott, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
December 2, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


In a previous Decision by this Court, filed on January 24, 2001, the State of New York (hereinafter "State"), was found 20% liable for the personal injuries suffered by Susan D'Amato in an action brought by Joseph D'Amato, individually and as the guardian of Susan D'Amato. A trial on the issue of damages was heard by this Court on February 19 and 20, 2002.


On August 26, 1996, at approximately 5:40 p.m., Susan D'Amato was involved in an automobile accident which occurred on Route 110 (also known as New York Avenue), at its intersection with Broadway (to the east) and Railroad Avenue (to the west) in the Town of Huntington, Long Island, New York. At that time, a 1987 BMW 325-I, two-door convertible, was being operated by Jacob A. Giannelli in a northbound direction on Route 110. At the same time, Susan D'Amato was operating a 1991 Plymouth Acclaim, four-door sedan, in a southbound direction on Route 110 and was attempting to make a left-hand turn to proceed eastbound on Broadway. While making the turn, Mrs. D'Amato yielded the right-of-way to a pedestrian who was crossing Broadway from south to north in a designated crosswalk. The Giannelli vehicle and the D'Amato vehicle then collided within the intersection. As a result of this collision Mrs. D'Amato sustained very severe and permanent brain injury.

At this trial on damages the Court learned through the testimony of Joseph D'Amato and other family members that Susan D'Amato was born on April 12, 1946. She married Joseph D'Amato on or about November 26, 1967. There are two children as a result of this union, namely Maryann D'Amato age 30, and Peter D'Amato age 32. Susan D'Amato attended Herricks High School in New Hyde Park, New York, from which she graduated in June of 1964. She received her bachelors of arts degree from Queens College of the City University of New York in 1967, and received a master of science degree from C.W. Post Campus of Long Island University in 1985. She is certified by the State Education Department as a public school teacher in the areas of nursery, kindergarten, and grades 1 through 6, as well as mathematics grades 7 through 12. At the time of this accident Susan D'Amato was employed at the Madonna Heights School, a school for problem children, and had been employed there for at least two full years. For the ten years prior to the accident, Mrs. D'Amato was employed by the Commack School District as a substitute teacher, prior to joining the faculty of the Madonna Heights School. Apparently Mrs. D'Amato was considered a preferred substitute in the Commack School District and during her employment there was called in on almost a daily basis teaching math or performing work in the Math Department. She apparently had received between 7 and 7 ½ years of retirement credit for this work through the New York State Retirement System. When the Commack School District combined its two high schools, Mrs. D'Amato found that she was not in as great a demand and therefore went to work at Madonna Heights full-time. The Court heard some testimony from Mrs. D'Amato's family that it was her intent, at some point in the future, to return to teaching in the public school system as opposed to the private Madonna Heights School.

Mrs. D'Amato also appeared to be extremely active and physical. She apparently loved soccer, and it was one of the true passions in her life. She not only played soccer actively, but she enjoyed watching and coaching soccer teams as well. Joseph D'Amato and his children also testified that Susan D'Amato was a traditional wife and mother. In addition to her working full-time at Madonna Heights she was the primary caretaker of the home, doing all of the cooking, cleaning, shopping, and laundry. All of these household chores were performed either before or after her school workday or on weekends. She cooked traditional Italian food with a great deal of success. Her family believes that she spent at least twenty hours per week providing these services. Additionally, it should be noted that she was the primary caregiver for her mother who had suffered a stroke some years previously. She bathed, fed, and cared for her mother on a daily basis.

By all accounts Susan D'Amato barely survived the initial trauma of the August 26, 1996 car accident. Emergency crews found her at the scene, unconscious, under the dashboard of the passenger's side of her vehicle. It took them more than forty minutes to extract her from her vehicle. At the scene she had a pulse but was in agonal respiration dictating that she be intubated on the spot. Upon her arrival at the emergency room she had questionable blood pressure, and was being mechanically ventilated. Her right pupil was fixed and dilated, and her left pupil measured approximately three millimeters and was sluggishly reactive to light. While she was initially unresponsive to painful stimuli, upon further examination she was able to move her left upper extremity and was able to move both legs. Numerous medical procedures were administered and the initial CT scan which she underwent at Huntington Hospital revealed a subarachnoid hemorrhage as well as contusions of the right and left temporal regions. Her admission summary concludes that she suffered multiple trauma secondary to the motor vehicle accident, the significant trauma of which is subarachnoid hemorrhage and a fracture to the right humerus. During her stay at Huntington Hospital, Mrs. D'Amato underwent numerous surgical procedures including, but not limited to, intubation, insertion of several intracranial pressure monitors via an intracranial bolt, an endogastric tube for feeding was inserted, and she received a tracheotomy for mechanically assisted breathing. Most of her records indicate that she was comatose during her stay at Huntington Hospital, and she was constantly referred to as severely brain damaged. However, there are notes within the record indicating that she grimaces at pain, and opens her eyes upon sensation of pain, and that she also has the ability to move her extremities in relation to painful stimuli. Mrs. D'Amato remained at Huntington Hospital until she was transferred on October 1, 1996 to the Moss Hospital Center Rehabilitation Unit in Philadelphia, Pennsylvania. She remained at Moss Rehabilitation Center until December 10, 1996 and while there received extensive treatment and rehabilitation. While there she was weaned off the ventilator, but generally her mental condition and function remained the same. She was unresponsive except to noxious stimuli with grimace and mild posturing, and had occasional spontaneous eye opening to voice. She remained, however, dependent in all of life's activities. Upon her discharge her prognosis was guarded for functional recovery due to significant involvement and injury of the brain stem. Throughout her course at Moss she was treated with Ritalin in hopes that the same would result in a significant change in her arousal. Mrs. D'Amato did seem to be more aroused on Ritalin and was continued on the same with increasing doses and continued in the responsiveness treatment protocol throughout her hospital stay until several weeks prior to discharge. At that time it was noted that the Ritalin was causing adverse reactions and she was weaned off the drug so that upon her discharge from Moss on December 10, 1996 she was no longer receiving the medication. She was discharged to Southside Hospital, in Bay Shore, New York, on December 10, 1996. Mrs. D'Amato remained at Southside Hospital until March 3, 1997. On initial physical examination, she was found to be comatose with no response to verbal or touch stimuli. She did, however, demonstrate a withdrawal reflex when presented with noxious stimuli. During her stay at Southside Hospital she received daily rehabilitation therapy, including passive range of motion to all extremities, coma stimulation, wheelchair positioning, and various other rehabilitative techniques, with no significant improvements. On discharge it was noted that she was not in acute medical distress at that time. On March 3, 1997, Mrs. D'Amato was admitted to St. Johnland Nursing Center in Kings Park, New York, where she has remained until present. While at St. Johnland she has continued to receive around the clock nursing care in a full service nursing facility and continues to obtain rehabilitation as necessary and warranted. However, her records to date show that she remains in what can be called a persistent vegetative state.

At this trial on damages Claimants called Oded Gerber, M.D., a licensed neurologist, specializing in diseases of the brain and the nervous system. The Court recognized Dr. Gerber as an expert in neurology. In preparation for his testimony Dr. Gerber examined the patient to determine her condition, as well as reviewing various doctors' reports and medical records from her extensive hospitalizations. Upon review of the same he found that Mrs. D'Amato is suffering from a traumatic brain injury, that she had been intubated to prevent aspiration, had been fitted for an intracranial monitor and endogastric tube along with a tracheotomy. While the prior treatment notes indicate that she is severely brain damaged, he noted that she does grimace from pain and opens her eyes often on sensation of pain. It was his opinion that these reactions indicate that some sensation is getting through to Mrs. D'Amato's brain. Moreover, she can move her extremities. While at Moss, the doctor noted from the records that Mrs. D'Amato groaned and made faces, suggesting that she was not in a total vegetative state. With his own examination of Mrs. D'Amato which occurred on August 23, 2001, the doctor felt that her mental status indicated that she was "awake",[1]
however, he was quick to note that awake does not equate to being conscious. Dr. Gerber explained that when one is conscious, you are aware of yourself and the environment, where simply being awake means that your eyes are open. He found Claimant had the ability to force her eyes closed, that she responded to tactual stimuli and upon painful stimulation she would grimace, move her head, and withdraw the extremity being so stimulated. Dr. Gerber concluded that the Claimant clearly feels pain and responds to tactual stimuli. She demonstrates a certain level of awareness to pain and a certain level of awareness of her environs. Moreover, her medical records show that she often cries and sobs, this too is not standard in a chronic vegetative state. While Dr. Gerber acknowledged that Mrs. D'Amato would not live a full life or enjoy a complete recovery, he could not say with medical certainty exactly how long she would live. Moreover, he concluded that there is no chance of any further recovery for this patient, and he believes that she will continue this way for the rest of her natural life. His conclusion was that Susan D'Amato certainly has perception of pain, and he concluded from her appearance, particularly her grimacing, may demonstrate more than just a primitive perception of pain, but in his opinion indicated some level of awareness of pain.

The State presented no evidence to counter the testimony of Dr. Gerber.

Additionally, Claimants' children, Peter D'Amato and Maryann D'Amato, both testified to observations that they have made of their mother's condition, most specifically while at St. Johnland Hospital. They testified their mother will periodically respond with her fingertips and that she tracks them with her eyes. They observe more movement of her body overall, and that she blinks on command. Both children have observed their mother respond to pain with a wailing and tightening of her body, and also responds to noise and music.
Maryann also testified that she has observed her mother while at St. Johnland and that upon entering the room she notices her face flush. She believes that she attempts to communicate with her eyes and notices a change in her breathing when they are present. She grunts and groans, particularly after touch, and she feels that she responds to the touch of her grandson. Both children notice finger movement and believe that their mother attempts to communicate through her fingertips and touch.

Robin Brady, R.N., also testified on behalf of the Claimants. Ms. Brady has been employed as a nurse for the past ten years and has been employed at St. Johnland Hospital for at least four years. Ms. Brady stated that while at St. Johnland from March of 1997 to November of 1997, Mrs. D'Amato was in the head injury rehabilitation unit. She was then transferred to the Lawrence Unit which is another head trauma and neurological disorder unit and in that unit had her trachea tube removed. Mrs. D'Amato now breathes on her own through her nose. While in the Lawrence Unit, Ms. Brady has treated Mrs. D'Amato on a regular basis. She opined that her general state of health is good, and also testified that Mrs. D'Amato recognizes her when she enters the room. Mrs. D'Amato opens her eyes, and the witness testified that Mrs. D'Amato relaxes for care such as massage and treatment if she knows the nurse administering the same. Ms. Brady has noticed that if a temporary or float nurse comes in, Mrs. D'Amato will tense and won't move, however with the regular staff she is fully at ease. She has noticed Mrs. D'Amato respond by moaning and crying to various songs on the radio and also on pain or discomfort she will moan and her eyes will tear. Ms. Brady testified that Mrs. D'Amato's motions and responses were appropriate in response to the care and treatment given on a daily basis by the staff. While in the Lawrence Unit, Mrs. D'Amato was on Zoloft. When she was temporarily taken off the same her crying and moaning increased. However, when administered Zoloft, Darvoset, and/or Percocet, she is more relaxed and at ease. Ms. Brady acknowledged that her status is a persistent vegetative state and that her condition and responses to stimuli have remained the same since admission. Ms. Brady has noticed Mrs. D'Amato respond to her family in that she "knows when they're there", and often reacts with tears, moans, and crying when they leave or in their absence. She has noticed Mrs. D'Amato cry or moan in response to her grandson, and that love songs, movies, and certain wedding pictures also elicit a consistent response.

At trial Claimants' attorney, Donald L. Citak, also asked the Court to take judicial notice of a future period or life expectancy of 27.3 years. The same was noted by the Court.[2]


It was noted at the outset of this Decision that the State was found 20% liable for the injuries sustained by Susan D'Amato as a result of an automobile accident which occurred on August 26, 1996. From there flows the conclusion that the State is therefore 20% liable for the damages sustained by Susan D'Amato as a result of the same. To assist in establishing proof of damage at this trial, Claimant called Jerry Miner, Ph.D., an economic consultant from Syracuse, New York. The Court recognized Dr. Miner as an expert in the field of economics and found his testimony on damages to be relatively straightforward and accurate. Conversely, the State called no witnesses to counter the economic loss and damages as described by Claimants' consultant. In his report Dr. Miner analyzed various elements of economic loss including: 1) net loss of earning capacity including earnings and employer contributions to fringe benefits; 2) value of loss of household services; and 3) lifetime cost of nursing home care.

A. Earning Capacity including fringe benefits

As a general principle a claimant is entitled to be reimbursed for any earnings loss caused by the defendant's negligence from the date of the accident to the date of trial. Additionally, the Court may make an award for loss of future earnings if the claimant has suffered a reduction in their capacity to earn money in the future as a result of the same negligent act. (
36 NY Jur 2d, §§ 69 & 198).

Dr. Miner testified that at the time of the accident he was aware that Mrs. D'Amato was employed by the Roman Catholic Diocese of Rockville Centre, New York, as a mathematics teacher at Madonna Heights Services in Dix Hills, New York. Mrs. D'Amato had taken this position in the 1993/1994 school year. He was also aware that prior to working at Madonna Heights she had served as a substitute in the Commack Union School District from 1984 to 1991. When she sought full-time employment in 1993 there were no openings in the public school district so she accepted a position at Madonna Heights. Dr. Miner testified that he believed that Mrs. D'Amato's goal was to obtain a permanent position in the public school district in Suffolk County. From information he received, he also believed that Mrs. D'Amato would have been able to secure employment with the Suffolk County School District as a mathematics teacher sometime in the school year of 1997-98. He believes that it was reasonable to assume that she would have obtained such a position with the public school at that time, based upon information he received from various members of the D'Amato family. Consequently, Dr. Miner offered two theories of loss of earnings capacity: 1) as a teacher continuing in the Diocese of Rockville Centre, and 2) as a public school teacher in the Suffolk County School District starting in the 1997-98 school year. Consequently, Dr. Miner prepared two analyses pertaining to loss of earnings, one assuming that Mrs. D'Amato continued in her position as a parochial school teacher at Madonna Heights, and one assuming that she would have obtained a new position with the Suffolk County School District in school year 1997-98. However, the Court feels constrained to note that there is nothing in the record that indicates that Mrs. D'Amato would in fact have been employed in school year 1997-98 by the Suffolk County School District. The only thing that the Court can be certain of with regard to the calculation of this element of damages and loss earning capacity is that on the date of the accident Mrs. D'Amato was employed by the Roman Catholic Diocese of Rockville Centre, New York, at the Madonna Heights School. While there may have existed, on the date of the accident, the possibility for future employment at a better wage, it was no more than that — a possibility — rather than a probability. (
Kirschhoffer v VanDyke, 173 AD2d 7, 10). Nor was proof presented to the Court that a job offer was definitely made to Mrs. D'Amato that she had accepted, guaranteeing her employment in the 1997-98 school year. Consequently, the Court will only consider proof pertaining to loss of earning capacity, both past and future, on the basis of Claimant's continuing employment at the Madonna Heights School. To do otherwise would be to speculate on what the future might have brought to Mrs. D'Amato absent the accident, which is impermissible. (Eichler v City of New York, 196 AD2d 524).

1. Past Loss of Earnings

As a general principle, proof of past lost earnings must be established with reasonable certainty focusing on the Claimant's earning capacity before and after the accident. (
Clanton v Agoglitta, 206 AD2d 497, 499; Walsh v State of New York, 232 AD2d 939, 940-941). It is the Claimant's burden to establish her own loss of actual past earnings by submitting appropriate proof and documentation. In calculating lost earnings, the Court may consider the value of fringe benefits associated with Claimant's position, assuming that there is evidence presented as to the nature and value of such benefits. (Toscarelli v Purdy, 217 AD2d 815, 818).

Here, Claimants established by appropriate documentary evidence consisting of pay stubs, etc., that at the end of the school year 1995-1996, Susan D'Amato earned full-time earnings from Madonna Heights School of $30,114.00. Dr. Miner adjusted those earnings by 3% annually after studying various school districts in and around the Long Island area. Consequently, the Court adopts Dr. Miner's calculation of past lost earnings. As such, the Court finds that Claimant is entitled to and is awarded the sum of $175,880.00 for past loss of earnings. (Bench Ex. B, Table I).

2. Loss of Future Earnings

Loss of future earnings must be established with reasonable certainty focusing, in part, on Claimant's earning capacity both before and after the accident. (Clanton v Agoglitta, 206 AD2d at 499).

Here the testimony remains unrefutted that Susan D'Amato will never be able to work again. Also the Court is satisfied that based upon the evidence and testimony before it that Susan D'Amato would have worked until age 65.
Using the same salary from the Madonna Heights School adjusted by 3% annually for inflation, which the Court previously found reasonable in calculating past lost earnings, the Court finds that the Claimant is entitled to and is awarded the sum of $384,208.00 for future lost earnings. (Bench Ex. B, Table I).
3. Future Economic Losses - Retirement & Fringe Benefits
The Court has previously determined that on the evidence presented at trial, Susan D'Amato would have continued employment with the Catholic Diocese as a teacher at the Madonna Heights School. In addition to future earning capacity associated with that position would have been the accrual of certain retirement benefits. The credible testimony at trial established that Susan D'Amato, in all likelihood, would have worked until age 65 and then retired. Based upon the uncontroverted calculations of Dr. Miner, it appears that Susan D'Amato would have been entitled to an annual retirement benefit of approximately $8,718.00. Applying that benefit through 2028 when Mrs. D'Amato would reach age 82.5 years, her life expectancy, indicates a total loss of future retirement benefits equal to $152,562.00. (Bench Ex. B, Tables III and IV).

4. Medical Expenses

The testimony of Joseph D'Amato established at trial that there were various unreimbursed medical expenses relating to private duty nursing services, and payment for a second opinion from neurologist Dr. Irwin Schlesinger.
Based upon the testimony and the proof contained in Claimants' Exhibit 20, received at trial, the Court is satisfied that Claimants incurred unreimbursed medical expenses in a total amount of $3,606.90. (O'Connor v Rosenblatt, 276 AD2d 610).
5. Institutional Nursing Home Care

The undisputed testimony at trial indicates that Susan D'Amato has required nursing home care in the past and will continue to require the same in the future for the rest of her natural life. Consequently, based upon the Claimants' economist, Dr. Miner, as well as Claimants' Exhibits 22, 23, 24, 25, 26, 29, and 30, the Court concludes that Susan D'Amato has incurred institutional nursing home care at a past cost of $361,825.00. (
Baker v City of Kingston, 26 AD2d 870, lv denied 19 NY2d 580). (Bench Ex. B, Table VIII).

By the same token, again based upon the testimony of Dr. Miner, and the aforementioned exhibits presented at trial by Claimants, the Court is satisfied that Mrs. D'Amato will incur institutional nursing home care costs in the future and for the remainder of her natural life in a total amount of $5,140,437.00. (Bench Ex. B, Table IX).

B. Pain and Suffering - Susan D'Amato

1. Past Pain and Suffering

It is well settled that the appropriate standard for non-pecuniary loss cases, more specifically pain and suffering, is "some level of awareness". (
McDougald v Garber, 73 NY2d 246). Moreover, a review of the relevant case law indicates that even brain damage victims in vegetative states have, under various levels of proof, sustained an award in damages for conscious pain and suffering. (McDougald, 73 NY2d 246; Weldon v Beal, 272 AD2d 321; Saguid v Kingston Hosp., 213 AD2d 770, lv denied 88 NY2d 868; Walsh v Staten Is. Obstetrics & Gynecology Assocs., 193 AD2d 672, lv denied 82 NY2d 845; Nelson v State of New York, 105 Misc 2d 107). In the above-referenced cases, response to stimuli by cry or smile, as well as grunting, groaning, and crying, all have been considered appropriate and sufficient proof to establish some level of awareness on the part of a plaintiff medically diagnosed to be in a vegetative state.
In this case the State has attempted to establish by highlighting various portions of the voluminous medical records of Susan D'Amato, that she is constantly diagnosed as being in a persistent vegetative state. The State, however, did not present testimony from any medical professional, but rather chose to rely on those records. That having been said, the Court does note, and agrees with Claimants, that the very same medical records contain numerous notations of Susan D'Amato's movements, winces, grimaces, moans, and motions, evidencing pain she was feeling and tending to establish some level of her awareness to it. Moreover, there are also notes in the hospital records indicating that she responds not only to noxious stimuli with facial grimaces and moans, but also is starting to visually track moving objects and starting to follow simple one step commands (i.e., move finger, open/close eyes).

Additionally, the Court had the benefit of the testimony of Robin Brady, R.N., who has spent substantial time with Susan D'Amato since her admission to St. Johnland Nursing Center, over five years ago. Ms. Brady has observed Mrs. D'Amato's reaction through a tightening of her muscles throughout her body, grimaces, facial expression, altered breathing patterns, moans, groans, crying, and sobbing. She has also observed Mrs. D'Amato express emotions and respond to various environmental stimuli such as varying reactions to different health care providers who tend to her daily needs, being calmed by people she is familiar with, and agitated by the touch of strangers. She has seen increased crying and emotional distress on the termination of visits from family members, specifically a grandchild. She has noted, as did the Moss Rehabilitation Center, various evoked responses throughout a course of treatment, and changes in her level of arousal and responsiveness to various medications including Ritalin and Zoloft, and reacting in various manners as the dosages of those drugs were either increased, decreased, or discontinued altogether. Furthermore, the Court has had the benefit of the testimony of Dr. Oded Gerber, Claimants' expert neurologist concluding unequivocally that Susan D'Amato certainly has perception of pain. He also concluded from her appearance, particularly grimacing and other responses to noxious stimuli that indicate in his opinion that she has more than a primitive perception of pain, but rather some level of awareness of pain itself. Based upon the foregoing, the Court is satisfied that Susan D'Amato does demonstrate some level of awareness sufficient to meet an appropriate standard for the award of non-pecuniary loss, particularly in light of the fact that no real proof was offered by the State to the contrary, other than the aforementioned references to medical records of Mrs. D'Amato's diagnostic state and cross-examination of the Claimants' expert witness.

Based upon the foregoing, the Court finds that Susan D'Amato should be awarded the sum of $1,000,000.00, for non-pecuniary loss associated with past pain and suffering.

2. Future Pain and Suffering
With regard to future pain and suffering, the Court is satisfied that Susan D'Amato is also entitled to receive the same
for the balance of her statistical life expectancy of 27.3 years. While the Court is mindful that some of the testimony received at trial from Claimants' expert neurologist, Dr. Oded Gerber, indicated some concern on his part that she would survive a statistical life expectancy, no proof was offered by the State from which the Court could conclude that the appropriate statistical table should not be applied. Based upon the foregoing, the Court awards Susan D'Amato the sum of $2,000,000.00, representing future pain and suffering.

C. Derivative Claim
1. Loss of Society and Consortium
Additionally, there is no question that Joseph D'Amato has lost the love, affection, and intimacy of his life partner with whom, by all accounts, he shared a very deep and meaningful relationship. Based upon the foregoing, the Court awards Joseph D'Amato the sum of $200,000.00 for past loss and $500,000.00 for future loss in his derivative action representing not only the loss of his wife's services, but her society and consortium as well.

2. Household Services
Again, according to the testimony of Joseph D'Amato at trial, Susan D'Amato was the primary caretaker and housekeeper of their marital residence. The unrefuted testimony established that she cleaned, cooked, shopped for groceries, and in all respects maintained their home. The Court is satisfied with the testimony of the Claimants' economist, Dr. Miner, coupled with the testimony of Joseph D'Amato, that approximately 20 hours per week was a reasonable figure for household services provided by Susan D'Amato. Moreover, the Court finds that Dr. Miner's incorporation of a 3% annual increase in the cost of providing those household services is reasonable and appropriate. Based upon the foregoing testimony, and proof, the Court awards the sum of $49,488.00 as the value of loss of past household services performed by Susan D'Amato. Applying the same formula to future loss, the Court awards the sum of $295,279.00 as the value of loss of future household services by Susan D'Amato. (Bench Ex. B, Table VII).

3. Other Derivative Expenses

Joseph D'Amato has also claimed, as part of his derivative cause of action, expenses incurred for legal fees and other disbursements necessitated by the Guardianship for his wife (Cl. Exs. 27, 28, 31, 32, 33, 34, 35, 36, 37, and 66), as well as expenses relating to the cost of his replacement health insurance coverage both past and future. (Bench Ex. B., Table VI). Based upon the record developed at trial and since Claimants have failed to provide, nor has the Court found, any authority from which to conclude that such an award is proper, these expenses are denied.
Based upon the foregoing, the total damages as found by the Court are as follows:

Past Damages -Susan D'Amato
Past Lost Earnings $175,880.00
Medical Expenses $3,606.90
Past Institutional Nursing Home Care $361,825.00
Past Pain and Suffering $1,000,000.00
Total Past Damages - Susan D'Amato $1,541,311.90
Future Damages - Susan D'Amato
Loss of Future Earnings $384,208.00
Future Economic Losses
(Retirement & Fringe Benefits) $152,562.00
Future Institutional Nursing Home Care $5,140,437.00
Future Pain and Suffering $2,000,000.00
Total Future Damages - Susan D'Amato $7,677,207.00

Derivative Claim of Joseph D'Amato - Past Damages

Past Loss of Society and Consortium $200,000.00
Past Loss of Household Services $49,488.00
Total Past Damages - Joseph D'Amato $249,488.00

Future Damages - Joseph D'Amato

Future Loss of Society and Consortium $500,000.00
Future Loss of Household Services $295,279.00
Total Future Damages - Joseph D'Amato $795,279.00

Since liability was apportioned 20% to the State, Claimant Susan D'Amato is entitled to recover the total sum of $308,262.38 for past damages and the sum of $1,535,441.40 for future damages. Joseph D'Amato is awarded the sum of $49,897.60 for past damages and the sum of $159,055.80 for future damages.

Since the amount of future damages awarded to Susan D'Amato exceeds $250,000.00, a structured judgment is required (see CPLR 5041 [e]). The Court directs that judgment be held in abeyance pending a hearing pursuant to CPLR article 50-B . The Court encourages the parties to agree upon an attorney's fee calculation and the discount rate to be applied and to formulate a structured settlement of their own (see CPLR 5041 [f]). In the event that the parties cannot reach such an agreement each party will submit a proposed judgment in writing conforming to the requirements of CPLR article 50-B within 45 days of service of this decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court.

Any and all motions on which the Court may have previously reserved or which were not previously determined are hereby denied.


December 2, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, all quotations are from the Court's trial notes.
[2]Susan D'Amato was born on April 12, 1946 and thus was 55 years old at the time of trial with a remaining life expectancy of 27.3 years. (1B NY PJI3d, Appendix A, p 1466).