New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2006-028-009, Claim No. 99852


The damage award resulting from the wrongful death of a 38 year old man, for which the State was 80 per cent responsible, consists of the following: $______ for lost earnings, benefits and household production and a total of $________ for the loss of parental care and nurture suffered by his four daughters, who were between the ages of __ and __ at the time of his death.

Case Information

SARAH SMITH, Individually and as Limited Administrator for the Estate of WILBUR L. SMITH, JR., Deceased
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: Frederick H. McGown, III, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 15, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


On December 5, 1997, Wilbur L. Smith, Jr., died instantly in a one-vehicle automobile accident. Following trial on the issue of liability, the Court determined that Defendant was 20 percent responsible for the death, by negligently designing and constructing the guide rail through which the Claimant's vehicle traveled, and that Smith himself was 80 percent responsible, by driving while intoxicated (UID # 2002-028-502, Claim No. 99852, April 12, 2002, Sise, J.). This decision relates to the subsequent trial on the issue of damages.
Applicable Law
Pursuant to EPTL §5-4.3(a), the type of damages that can be recovered in a wrongful death action are "the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought." The statute lists some categories of losses: the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and reasonable funeral expenses paid by the distributees or which they are obligated to pay. The listed items are not exclusive, however, for the statute indicates that they are to be paid "in addition to any other lawful element of recoverable damages." Loss of support, voluntary assistance and possible inheritance, as well as medical and funeral expenses incidental to death, are injuries for which damages may be recovered (Parilis v Feinstein, 49 NY2d 984 [1980]).

Although New York has not joined the majority of other States in permitting recovery for grief or loss of society and companionship in these cases (Gonzalez v New York City Hous. Auth., 77 NY2d 663 [1991]), it does recognize that the pecuniary losses for which an award can be made includes not only "direct financial benefits" but also the nurture, care and guidance that the decedents would have provided to their children had death not intervened (Shu-Tao Lin v McDonnell Douglas Corp., 742 F2d 45 [2d Cir 1984], citing Zaninovich v American Airlines,

26 AD2d 155 [1st Dept 1966]; see also Sand v Chapin, 238 AD2d 862 [3d Dept 1997]). While assessing the economic value of such loss is, of course, "problematic" (Shu-Tao Lin v McDonnell Douglas Corp., supra), it is reversible error to omit an award based on this category of loss when the evidence presented at trial establishes that the decedent played an active and significant role in the nurture, care, and physical, moral and intellectual training of his or her children (Zygmunt v Berkowitz, 301 AD2d 593, 594 [2d Dept 2003]). Further, the Court of Appeals has ruled that in appropriate cases children who lose their parents may recover damages not only while they are infants but for those adult years during which the parent would have been alive (Gonzalez v New York City Hous. Auth., 77 NY2d 663, supra).

Factors that are traditionally considered in determining the amount of an award in wrongful death actions 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 [1988]). The value of the decedent's past and future lost earnings are to be measured by gross income at the time of death (id.).
Testimony and Other Evidence
At the time of his death, Smith was 38 years old. He had been living separately from his wife, Claimant Sarah Smith, for approximately nine months. Nevertheless, he was in frequent contact with his wife and their three young daughters and continued to financially support them. He also financially supported a fourth daughter, Kara Ronkese, who lived with her mother.

Decedent did not have a high school education but had learned the blacktopping trade from his father. Between 1993 and 1996, he owned, operated and managed his own black-topping business. In 1997, he sold the business to a former employee but continued to work for the company in a salaried position for six or seven months prior to his death.

Family members testified movingly about the decedent. Although he and his wife were separated at the time of his death and the children lived with her, it was very clear that the couple remained in communication with each other and that there had been no diminution or slacking in his parental role.[1] In the instant case, it is evident that decedent's separation from his wife had not severed his relationship with her and did not have a significant negative effect on the support, financial and other, that he provided to his family. He had leased an apartment about one-quarter mile away from the apartment where his wife and daughters lived, and he was at their apartment or otherwise in contact with his daughters every day. His wife, his sister-in-law, and the three daughters all testified that decedent would show up every morning to drive his children to school, sometimes arriving early in order to take them to breakfast. Most afternoons he picked them up from school as well, but even when he did not, he would come by his wife's apartment to visit with them or to take one or more of the girls with him to work in the late afternoon. During the summer, according to the oldest daughter, Lisa, the girls would individually go to work with him for a full day at a time, accompanying him as he traveled to different locations to give estimates for blacktopping jobs.

Decedent was, without doubt, a nurturing and caring father and someone who was an everyday and important presence in the lives of his daughters. At the time of trial, his daughter Lisa was 20 years old; Linda Smith Nobre, who had married, was 18; and Portia was 15. At the time of his death, they were 15, 12, and 9 years of age, respectively. Even after the passage of several years, none of the girls was able to speak of him without losing composure, eloquently revealing what his loss still meant to them. The daughters spoke with feeling of things they had done with him, either altogether or in special, private moments that each had had with her father. Lisa, who had a telephone in her room at the time, testified that during the period of separation, he would call her each night to say good night. Linda spoke of her father reading to her from the Bible in the evening.[2] Portia proudly said that she and her dad had "hung out" together. Each of the girls would spend the night at his apartment on occasion; sometimes the three together, and sometimes just one of them at a time.

According to Mrs. Smith, her husband provided $500 a week for the family's basic needs and he was very regular in doing so. He was so reliable, in fact, that she saw no need to get an order of support and failed to pursue the one proceeding that she had initiated when they first separated. She testified that decedent also gave her money to pay the $405.91 monthly premium for medical coverage for the family and that he would provide additional money when there was a special need. It was decedent, almost exclusively, who was responsible for purchasing the children's clothing, because he was the parent who most often went shopping with them. All three girls stated that their father was extremely generous with them, with Lisa explaining that her father's family had been poor when he was young and "he didn't want us to want anything".[3]

All of the girls recalled vacation trips with their father and mother, and sometimes other family members, in addition to regular outings to church, the movies, or restaurants. Even during the period when their parents were separated, the entire family would all get together for special occasions, such as Lisa's graduation from eighth grade. In addition to the daily visits and times spent with his children at his apartment or elsewhere, decedent would occasionally have meals with the rest of the family at their apartment.

When asked what she talked about with her father, Lisa said "everything". At the time, she particularly talked to him about boys, and, relating at trial that she was engaged, Lisa said that she wished very much that she could now talk to him about marriage. Shortly before his death, decedent was helping Lisa learn to drive and, in response to questioning, she acknowledged that he would take her to a remote area with roads and let her practice actually driving the car. One of their most important, and repeated, topics of conversation was about school. She stated her father continually stressed that it was very important for her to finish school and to always be able to take care of herself. He also advised her to work hard at whatever she chose to do in life.

Linda also reported having many conversations with her father about the importance of finishing high school. Although he hadn't actively helped them do their homework very often, she said that he made sure that they did it. Linda also recalled speaking with her father about what it would be like when she got married someday, and she remembered that he "taught us a lot about how to treat people." The importance of schooling was also stressed with the youngest daughter, Portia, who said that he did help her with her homework on some occasions. Primarily, however, she remembered just doing "regular stuff" with her dad, specifically mentioning renting movies, going to work with him, and staying over at his house.

Decedent was the father of a fourth daughter, Kara Ronkese. Exhibit 1 was an order of filiation and order of support issued by the Ulster County Family Court with respect to this child. Helen Ronkese-DeVico, Kara's mother, testified that her daughter was born on February 21, 1989, and at the time of her father's death Kara was approximately 8 years of age. Kara's mother stated that decedent visited with his daughter regularly, about ten to twelve times a year. When Kara was young, the visits lasted a half-hour to an hour but they lengthened to two to three hours as she got older. Mrs. Ronkese-DeVico was present during most of the visits when Kara was young, because she and decedent typically drove to a meeting place in their own respective cars. Kara had had two or three longer visits with her father before his death, but she had not yet stayed overnight at his apartment. When they were together, Kara's mother observed decedent fulfilling the traditional fatherly role, both playing with Kara and providing guidance and teaching. She didn't elaborate further.

The support order required that decedent pay $124 per week for Kara's support, and he had paid this amount regularly. The order also directed him to pay one-half of any of Kara's uncovered medical expenses, and at the time the order was signed he paid $500 toward such expenses. After that, Mrs. Ronkese-DeVico testified, the amounts for which he would have been obligated were so small that she never requested he pay them. Decedent also frequently purchased gifts for Kara during his visits with her. Upon questioning by the Court, Kara's mother stated that there was no court order relating to visitation but that, by agreement, decedent was free to see Kara whenever he wished or was able. He had told her that he would have liked to have Kara visit in his home and be with him more, but he did not want to upset his wife.

Kara Ronkese testified that although she was young when he died, she recalled her father and visiting with him. She also estimated that she saw him ten or twelve times a year. She particularly recalled going to the movies with him, going out to get ice cream, and going to the mall. Kara stated that she had a good time with him on these visits.

With respect to decedent's direct financial situation, Claimant's expert, Dr. James Lambrinos, based his valuation of the loss suffered by decedent's family on decedent's lost earnings and benefits and the value of the household services he would have contributed. Dr. Lambrinos concluded that the decedent would have had a life expectancy of 77.1 years, that he would have stopped working at the age of 60.3 years and that, thus, he had a work life expectancy of 21.7 consecutive years. On cross-examination, the witness explained that he reached the figure for work life expectancy by using an overall average, electing not to use a table that reflected educational attainment. He was aware that decedent had not finished high school, and acknowledged that if he had used the tables based on educational attainment, the anticipated work life expectancy would have been 17.7 years. He explained that he felt that the general average based on age was more appropriate in this case in view of decedent's work history. Dr. Lambrinos also noted that he could also have used a table based on individuals who were self-employed, which would have resulted in figures higher than those contained in the general average table that was used.

Claimant's expert calculated decedent's lost earnings starting from a baseline earnings level of $47,466[4] and applying an annual wage inflation rate of 3.67 percent. He determined that the sale of decedent's business did not have a significant impact on the averaged income.[5] Dr. Lambrinos also calculated the Social Security benefits that would have been earned by decedent upon retirement at age 62 based on the lost wage estimate.[6] Reductions made in the overall household income for decedent's personal consumption were 23 percent during the years he would have worked and 26.3 percent during his retirement years. The value of the household services that decedent would have contributed to the household, less those that would have been for only his own benefit, were calculated, and a modest inflation rate of 2.5 percent was used in the estimate of their future value. This estimate was based on an average applicable to males of his age with his employment status.

The totals reached by Dr. Lambrinos in his initial calculation of direct financial loss to decedent's survivors were past losses of $193,177; future losses of $1,535,937, for a total loss of $1,729,114. If the newly available information found in the 1995 tax returns (Exhibit 22) were factored in, he estimated that the totals would be reduced by approximately 2 percent. When asked to make the recalculation, by including the 1995 information, the numbers were changed to the following (less personal consumption):
Loss of earnings: $1,167,468 (past $190,743; future $976,725)
Social Security benefits: $332,109 (future)
Household production: $210,401 (future)

The $190,743 in past losses and $1,519,235 in future losses totaled $1,709,978.

At the request of defense counsel, Dr. Lambrinos made a further recalculation based only on information relating to the last five years (i.e., including the 1995 tax return information and dropping that for 1988). This calculation resulted, he testified, in a reduction of $76,128, which would make the total loss $1,633,850.

In arriving at his estimates, Dr. Lambrinos stated, he applied a standard wrongful death analysis and did not include adjustments based on the fact that decedent and his wife were living apart at the time of his death. Thus he did not make an adjustment to reflect that at the time of his death, decedent was paying a lease for his own apartment and was also paying installments on a mobil trailer for the benefit of his mother who lived in the State of Washington.

Dr. Lambrinos testified that while an analysis based on a permanent two-household would be slightly different, probably lowering the household contribution amount and raising the personal consumption amount, he was not aware of any studies based on such an arrangement and, in addition, had no basis for assuming that there would never have been a reconciliation.

Dr. Lambrinos was also asked if the $22,000 reported as decedent's income for a six month period in 1997 wasn't a more accurate reflection of his total annual income after he sold the business, because an employee of a paving company would be paid only for the months when blacktop work can be done (i.e., from April through November). Dr. Lambrinos

stated that he had no basis for assuming that decedent would not have worked in some capacity during the other months of the year, particularly since he had previously worked year-round.

The State's expert witness, Kevin Decker,[7] was directed by defense counsel to use several of the same components used by Dr. Lambrinos, specifically the annual wage inflation of 3.67 percent and personal consumption offset of 23 percent during working years and 26.3 percent during retirement years. The difference in the State's estimates is found in the base earning level, which Decker considered to be $22,000, and the assumption that decedent would have performed no services of value for the household. The base earning level was developed from decedent's actual reported earnings over the seven months in 1997, and this was applied to an anticipated work life expectancy of 17.7 years, based on the statistical tables reflecting an individual's educational attainment.[8] The resultant projected losses, according to Decker's calculations would be the following, less personal consumption:
Lost income: $436,975
Social Security $259,656
Household production: $0.00
Total projected losses: $696,631

In reaching his conclusion that decedent's household production contributions would have had no value, Decker rejected the use of a statistical average because, in the situation presented here, there was an actual person and it was possible to value the actual household services he performed. He acknowledged, however, that he had not heard the testimony of decedent's widow and had not been given information that decedent had performed household contributions such as child care, working on cars, and other household tasks, such as putting up light fixtures.

On cross-examination, Decker agreed that decedent's income for 1988 ($41,000), 1993 ($34,395), and 1994 ($77,884) were significantly higher than his projected base income. These years would have been offset, he stated, by the income from 1995 and 1996, which Decker concluded was $10,402, one-half of the amount attributed to both spouses (see footnote 5). The projection was based, however, not on an average of all the prior years but solely on decedent's 1997 income, $22,000. Decker considered this to be an accurate annual income, as he assumed that decedent would not have been able to work the entire year, since blacktopping activity must cease in the winter months. When asked if decedent's overall earnings history would support a conclusion that $22,000 is the accurate base salary, Decker replied that only 1997 should be considered because it was decedent's only year of work as a salaried employee. He acknowledged that his calculations assumed that decedent would never have returned to owning his own business or to other more productive activities. When Decker was asked how someone who made only $22,000 could manage to pay $500 a week to his wife and three daughters; $124 per week for support for his other daughter; $405.91 per month for health insurance; $550 per month for his apartment; and $219.25 a month on a trailer for his mother, his response was that he would wonder where the other income was coming from. Decker conceded, however, that his projected base annual income appeared to be less than the amount of money that decedent was actually spending at the time of his death.
Discussion and Valuation
The Court must reject several of the assumptions on which Kevin Decker based his significantly lower calculation of economic loss. It is difficult to support using the amount that decedent had made in the partial year following his sale of what appears to have been a successful business as the sole basis for calculating his annual income. It seems more probable, as was assumed by Dr. Lambrinos, that decedent's future earnings would have been a continuation of the overall pattern that was shown during the five-year period preceding his death. In addition, there is no reason to conclude that decedent made no contribution to the household, when all the testimony about his lifestyle indicates that, whether or not he was separated from his wife, he was still a very involved, supportive and contributing member of the household.

Based on the decedent's work history and the reasonable assumption that he would have continued to be hard-working and relatively more successful than his educational attainment would suggest, the Court finds the direct financial loss suffered by his survivors to be as follows:
Loss of earnings: $1,091,340 (past $178,305; future $913,035)
Social Security benefits: $ 332,109 (future)
Household production: $ 210,401 (future)
Total $1,633,850

The figures were arrived at by taking the recalculation amounts given by Dr. Lambrinos, in which he included the data from 1995, and reducing those totals by the $76,128 that he testified would be subtracted from the total if the 1988 information were deleted. The resultant total was distributed to past and future earnings in the same proportion that was used in Dr. Lambrinos' original calculation.

Determining the monetary value of the loss of the nurture, care and guidance that decedent would have provided his children had he not died is, as noted above, "problematic" (Shu-Tao Lin v McDonnell Douglas Corp., 742 F2d 45, supra). In that case, the Second Circuit rejected the use of psychiatric counseling costs as a relevant consideration, determining that such analysis resulted in a "recovery significantly larger than appears typical for this type of loss in New York courts" (id. at 52). The conclusion reached in Shu-Tao Lin (supra), relied in part on Long v City of New York (81 AD2d 880 [2d Dept 1981]), in which a $150,000 jury award was reduced to $75,000 for loss of "intellectual, moral and physical training, guidance and assistance" when a 20-year-old woman left a surviving infant. In Juiditta v Bethlehem Steel Corp. (75 AD2d 126 [4th Dept 1980]), also cited in the Second Circuit decision, a $100,000 award was upheld where the decedent, a 33-year-old woman left behind an unidentified number of children. As with pain and suffering, in fixing the amounts that represent the pecuniary value of a child's loss of parental guidance and support, there is no "guidance of precise and detailed guidelines" and thus it is appropriate to look to comparable cases to determine what has been found to be reasonable compensation (Valentine v Lopez, 283 AD2d 739, 743 [3d Dept 2001]; Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780, 782 [3d Dept 1998]).

Decedent's children are now entering their adult years and, without doubt, continue to feel his loss. It is well-established that awards based on the pecuniary value of lost parental guidance may be made even where the children of the deceased are adults (Gonzalez v New York City Hous. Auth., 77 NY2d 663, supra [1991] ["The argument that an adult distributee cannot state a claim for pecuniary injuries based on the loss of a parent's guidance was long ago rejected by this court" (id. at 669)]; Korman v Pub. Serv Truck Renting, Inc., 116 AD2d 631, 632 [2d Dept 1986]; see also McKee v Colt Electronics Co., Inc., 849 F2d 46, 51 [2d Cir 1988] ["New York law allows children of any age to recover for pecuniary injury derived from loss of a parent's contribution to income or household services; we do not believe that New York prohibits the same children from recovering proven pecuniary losses for nurture, care, and guidance."]). Such awards, however, are typically made only upon solid proof of "true dependency" (In re Air Crash Near Nantucket Island, Massachusetts, 2002 WL 32302598 [EDNY 2002]) or other unusual circumstances (see e.g. Gonzalez v New York City Hous. Auth., supra [decedent provided daily support and guidance to adult grandchildren, helping them to cope with their mother's mental illness]). While the Court has no doubt that Decedent would have continued to be a supportive parent beyond his daughters' childhoods, there was no such specific proof in the instant case.

After considering awards that have been made in other situations where minor children have lost a parent who was very involved in their lives and very supportive of them (see e.g. Bryant v New York City Health & Hosps. Corp., 250 AD2d 797 [2d Dept 1998], mod. on other grounds 93 NY2d 592 [1999]; Steel v State of New York , 6 Misc 3d 1030[A], 2005 WL 475211 [Ct Cl 2005]; Royal v State of New York, UID #2001-017-003, Claim No. 94071, dated February 14, 2001 [Ct Cl 2001], O'Rourke, J.), the Court concludes that the following awards are appropriate for this item of damages: for Lisa Smith, $275,000 past; no future damages; for Linda Smith Nobre, who was married on January 9, 2003, $300,000 past, no future damages; for Portia Smith, $425,000 past, $150,000 future; and for Kara Ronkese, who had significantly less contact with decedent, $150,000 past, $50,000 future.


The total pecuniary damages resulting from the death of Wilbur L. Smith, Jr., are as follows:

Past Damages
Loss of earnings $178,305
Loss of parental guidance (Lisa Smith) 275,000

Loss of parental guidance (Linda Smith Nobre) 300,000
Loss of parental guidance (Portia Smith) 425,000

Loss of parental guidance (Kara Ronkese) 150,000
Total Past Damages $1,328,305

Future Damages
Loss of earnings $913,035
Loss of Social Security benefits $332,109
Loss of household production $210,401
Loss of parental guidance (Lisa Smith) -0-
Loss of parental guidance (Linda Smith Nobre) -0-
Loss of parental guidance (Portia Smith) $150,000

Loss of parental guidance (Kara Ronkese) $ 50,000
Total Future Damages $1,655,545
Total Damages $2,983,850

This amount is reduced to 20 percent of the total, representing the State's proportionate liability, for a total award of $596,770, apportioned as $265,661 past damages and $331,109 future damages, together with appropriate interest.

Since the amount of future damages exceeds $250,000.00, a structured judgment is required (CPLR 5041 [e]). The Court therefore 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 attorneys' 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 this does not prove possible, each party shall submit a proposed judgment in writing conforming to the requirements of CPLR article 50-B within 120 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 with regard to the collateral source issue and the structured settlement.

March 15, 2006
Albany, New York

Judge of the Court of Claims

[1] Mrs. Smith did not indicate whether she considered it likely that she and her husband would have reconciled. She did relate, however, that when the children were very young, she moved out and returned to her family on perhaps three or four occasions, but eventually returned to her husband each time.

As a general proposition, separation between spouses that does not culminate in a divorce cannot defeat or destroy the right of the survivor to maintain an action for the negligent death of the other, although it may affect the amount of recovery (Annotation: Damages for wrongful death of spouse as affected by personal relations of the spouses, or the marital misconduct of either spouse, 90 ALR 920; see also EPTL §4-1.1). The effect, if any, that such separation can have on the amount of recovery is determined by the decedent's "habits, the relations existing between the wife and him and the position he has taken in respect to his obligations to support her" Wilkinson v Boehm, 231 App Div 295, 296 [3d Dept 1931]). (See also 37 N.Y. Jur 2d Death § 376 [" The amount recoverable in a wrongful death action is largely influenced by the nature of the relationship between the beneficiary and the deceased, [FN1] including the satisfactory or unsatisfactory state of the marital relations enjoyed by the decedent and the surviving spouse."]).

[2] Exhibit 2, which consists of medical records relating to therapy sessions that Linda attended for sometime following her father's death was admitted into evidence (CPLR 4518-c; Wilson v Bodian, 130 AD2d 221 [2d Dept 1987]). The Court notes, however, that grief suffered by survivors is not compensable in a wrongful death action (Liff v Schildkrout, 49 NY2d 622 [1980]; Arias v State of New York, 8 Misc 3d 736[Ct Cl 2005]), even when such reaction can be causally connected to psychiatric problems suffered by the survivors (Escobar v Seatrain Lines, 175 AD2d 741 [1st Dept 1991]).

[3] Unless otherwise indicated, all quotations are from the Judge's trial notes, supplemented as necessary by reference to the Court's audiotape of the trial.

[4] This figure was based on information from a court order containing details of decedent's 1988 income (Exhibit 1) and from his tax returns for the years 1993, 1994, and 1996 to 1997 (Exhibits 20, 21, 23 and 24). Exhibit 22, the tax return for 1995, was not available to Dr. Lambrinos at the time of this original analysis.
[5] On cross examination, defense counsel observed that during the years decedent operated his own business, the income tax returns attributed half of the wages and half of the Social Security earnings to Sarah Smith, while Dr. Lambrinos attributed the full amounts of each to decedent in reaching calculations about future income and future Social Security benefits. The amount of income reported on an individual's tax returns is not controlling in that it "has no direct bearing on the actual pecuniary loss suffered by his distributees" (Pellegrino v State of New York, 128 Misc 2d 757 [Ct Cl 1985], affd on other grounds 121 AD2d 612 [2d Dept 1986]).

[6] At trial, Dr. Lambrinos also testified regarding loss to the family related to decedent's payment of health insurance premiums, as information about his payment of a health care premium of $405.91 per month had not been revealed to Claimant's counsel until shortly before trial. If this contribution were considered, he testified, the amounts that would be added would be $23,588 past loss and $143,637 future loss. In the Court's opinion, consideration of this item would be inappropriate, however, as it is an expenditure rather than an additional source of income.

[7] Claimant moved to preclude the testimony of this witness on the ground that the Defendant's CPLR 3101(d) disclosure was untimely and that the substantive content of the disclosure was inadequate. The motion was granted only to the extent that the witness was required to testify within the parameters of the response given.
[8] In making the calculations, this figure was rounded up to 18 years.