In a previous trial on the issue of liability, the Court found that the State
was liable for 85% of the damages suffered by Claimant as a result of the death
of his son, Kevin,
who was 21 years of age at
the time. This Decision will address the issue of damages only.
Claimant, Joseph Sarullo, Decedent’s father, was born on November 18,
Claimant testified that he and
Decedent’s mother, Martha Sarullo, had been married almost 40 years at the
time of trial and had three children. Decedent was born March 26, 1980, and
died on August 31, 2001. Claimant is a bus driver and Mrs. Sarullo had been a
school bus driver for 25 years but is now disabled. Decedent had not completed
high school at the time of his demise and Claimant was unsure of whether he had
completed work on his General Equivalency Diploma (GED). On the day of the
accident Decedent was unemployed; however, he expected to begin working the
second shift at the Wal-Mart Distribution Center Warehouse the following
weekend. At his prior job, he was earning $10 per hour plus overtime. He had
no debts at the time of his death. Claimant taught his son auto mechanics and
Decedent also attended BOCES classes on the subject.
Decedent was single with no children, thus his parents are his distributees
(see EPTL 4-1.1). He had an older brother and younger sister. Decedent
would help his parents around the house with repairs and renovations. A few
years before his death, he paid to have the firebox replaced in his
parent’s furnace when it stopped working during the winter. Claimant
recalled it cost about $300 for the replacement. Claimant said he considered
the assistance with the firebox and hot water heater a loan which he anticipated
repaying; although Decedent did not expect repayment. Claimant did repay a
small portion to his son. Decedent also purchased groceries or gave his mother
Also, when Claimant was in the hospital with a heart problem for approximately
two weeks and had no income, Decedent gave grocery money to Mrs. Sarullo to
assist with expenses. Decedent also bought and replaced the hot water heater
that failed when Claimant was in the hospital. The heater cost $180, and he
installed the hot water heater in a couple of hours. He also replaced the
radiator in Mrs. Sarullo’s automobile; it cost $125 for the part and the
labor was about one and one-half hours.
Over the course of two weeks, Decedent helped Claimant rebuild the motor in his
van. They worked 20-25 hours per week repairing the van. Decedent would do
the heavy lifting which Claimant was unable to do. It saved the cost of a
mechanic repairing the car. Decedent also replaced the starter in another car
which took about an hour to complete.
Claimant and Mrs. Sarullo were renovating their home. Decedent helped Claimant
remodel the kitchen which took approximately a month. Decedent was working at
the time but would help 15-20 hours per week. He also helped dig a 200'
pipeline from a drilled well to the house. The time it took to complete the
pipeline was approximately three weeks. Decedent was planning to help Claimant
renovate the foyer and living room which they were about to begin at the time of
Decedent’s death. Claimant anticipated that Decedent would help remodel
the entire house. Claimant had originally obtained a quote for the total
renovation project which was $100,000, with labor at $20 per hour. Claimant
couldn’t afford that so he and Decedent started the work themselves.
Claimant testified the downstairs and half of the upstairs would have been
finished by the time of trial had his son lived.
Mrs. Sarullo, as a school bus driver, was out of work each summer and was
unable to collect unemployment, so Decedent would help financially whenever he
could. Weekly he would ask what his parents needed or would give them $40 - $50
in cash when he had it. When Mrs. Sarullo broke her foot, Decedent went to his
parents’ home and walked the dogs three times a day for her. Decedent
also worked on a farm nearby to earn additional income.
Since their son’s death, Claimant was without income for 10 days while he
was ill. Claimant testified that Decedent would have helped during that time.
Claimant also testified that he paid the ambulance bill and hospital bill
related to the accident and death. There was no insurance coverage. The
funeral home has not been paid and that bill has accrued interest and
On cross-examination, Claimant testified that Decedent had been fired from his
prior job and was awaiting the results of a drug test before he could begin his
employment with Wal-Mart. However, he also said that Decedent had his work
schedule and start date at the time of his death. If an extra hand was needed
with the house repair, Claimant could call his other son to help but usually
didn’t because he was busy with his own family. If Decedent was unable to
assist his father, Claimant said he would make the repairs himself with the help
At some time in the future, it was anticipated that their son, the Decedent,
would marry and not be as available to Claimant and Mrs. Sarullo. Decedent did
not want to have children. Although he occasionally mentioned marriage, there
were no imminent plans.
Mrs. Sarullo also testified. She basically confirmed what Claimant said about
Decedent’s assistance around the house and his financial
Although Decedent was not actually working at the time of his accident, his
work history and willingness to work more than one job at a time supports a
determination that he would have found employment even if his anticipated
employment with Wal-Mart did not materialize.
The purpose of a wrongful death action is to provide a decedent’s
distributees with “fair and just compensation for the pecuniary injuries
resulting from a decedent’s death.” (EPTL § 5-4.3). Where the
beneficiaries of the action are a decedent’s parents, the pecuniary
injuries include loss of their child’s support and services (Parilis v
Feinstein, 49 NY2d 984; Franchell v Sims, 73 AD2d 1). “Fair
compensation may properly include probable, or even possible, benefits which
might inure to the parents from [the decedent’s] entire life, taking into
consideration the possibility of failure or misfortune.” (Hanson v
County of Erie, 120 AD2d 135, 137-138). Among the factors for consideration
are the decedent’s physical status including age, sex, life expectancy,
state of health, habits and earning potential, and the relationship of decedent
with the beneficiaries and those persons health, age, and circumstances
(Franchell, 73 AD2d at 5-6).
From the evidence, Decedent was young, healthy, and close with his parents. He
assisted his parents both financially and utilizing the skills that he had, with
household and vehicle repairs and renovations. Claimant and his wife have a
reasonable expectation that Decedent’s contributions would have continued
if not for his untimely death (see Parilis,
49 NY2d at 985;
Zelizo v Ullah,
2 AD3d 273). Claimant had a life expectancy of 18
and there was no evidence, barring this
accident, that Decedent would have predeceased his father.
The Court awards $6,192.70 for the expenses from Decedent’s accident,
reduced by 15% for Decedent’s comparative fault, as follows:
Exhibit 1 - Lenz & Betz Funeral Home
Total Damage Award: $81,763.80
Interest on past award of $5,263.80 shall run from August 31, 2001 (see
Milbrandt v A.P.
Green Refractories, Co.,
79 NY2d 26, 34-38). Interest is suspended, pursuant to Court of Claims Act
§ 19(1), from May 28, 2002 until July 1, 2002.
Interest on $25,500 shall run from September 27, 2004 (a single reasonable
intermediate date) (see Id. and CPLR § 5001).
Interest on the loss future contributions of $51,000 shall also run from the
date of signing the liability Decision on October 24, 2007 (see Love v State
of New York, 78 NY2d 540).
To the extent Claimant has paid a filing fee, it may be recovered pursuant to
Court of Claims Act § 11-a(2). All motions not hereinbefore decided are
LET JUDGMENT BE ENTERED ACCORDINGLY.