[*1] Linda Steel, as Administratrix of the Estate of MICHELLE BREY, Deceased, Claimant, of New York, Defendant. Stephanie L. Dillon, Claimant, -v- State OF NEW YORK, Defendant.



100531



COURT OF CLAIMS OF NEW YORK



2005 NY Slip Op 50229U; 6 Misc. 3d 1030A; 800 N.Y.S.2d 357; 2005 N.Y. Misc.



February 3, 2005, Decided



NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.



PRIOR HISTORY: Steel v. State, 11 A.D.3d 673, 782 N.Y.S.2d 924, 2004 N.Y. App. Div. (N.Y. App. Div. 2d Dep't, 2004)



DISPOSITION: Claimant Linda Steel, as Administratrix of the Estate of Michelle Brey (claim no. 100531), awarded a total of $ 2,198,653 in past damages and $ 1,422,979 for future damages; Claimant Stephanie Dillon (claim no. 100814) awarded a total of $ 1,300,000 in damages for past pain and suffering and $ 650,000 for future pain and suffering.



HEADNOTES: [***357] [**1030A] Damages--Nonpecuniary Damages in Personal Injury Actions.



COUNSEL: For Claimants: Parker & Waichman, Esqs, By: Andy Alonzo, Esq (Claim No. 100531) Palermo, Palermo & Tuohy, P.C., By: Steven J. Palermo, Esq. (Claim No. 100814).



For Defendant: Eliot Spitzer, Attorney General, By: Denis J. McElligott, Esq., AAG.



JUDGES: ALAN C. MARIN, Judge of the Court of Claims.



OPINIONBY: ALAN C. MARIN



OPINION: Alan C. Marin, J.

Stephanie Dillon was raped, and Michelle Brey raped and murdered, in a two-week period in the fall of 1998. Both were victims of the same man, Franklin Scruggs, who should have been in prison, but had been mistakenly released when he was re-sentenced on one of the two sentences he had been serving concurrently. [*2]

The Second Department has affirmed the Interim Order and Second Interim Order in these cases. n1 By the terms of the Second Order, what remained for trial - - in addition to damages - - was the apportionment of responsibility under CPLR Article 16 between the negligent defendant and the intentional tortfeasor, Mr. Scruggs.



n1 Steel v State of New York (decided with Dillon v State of New York), 307 A.D.2d 919, 762 N.Y.S.2d 883 (2d Dept 2003); and with the identical caption at 11 A.D.3d 673, 782 N.Y.S.2d 924 (2d Dept 2004).



Nonetheless, defendant was permitted to present evidence and argue that Ms. Brey or Ms. Dillon was chargeable with comparative negligence. n2 At trial, forensic pathologist Dr. Mark Taff took the stand, adding context to the autopsy report of Ms. Brey, which had been part of the motion papers. Further, we heard the trial testimony of Stephanie Dillon; her deposition had also been part of the motion papers.



n2 Claimants and defendant had agreed that the two cases would be procedurally joined, although tried separately, with some evidence in common, in consecutive weeks.



Ms. Brey's autopsy indicated the use of cocaine shortly before her death, and a blood alcohol concentration of 0.11%, beyond the then 0.10% limit in Vehicle & Traffic Law § 1192.2. Brey went to a bar and the police had a report that she was seen leaving with Scruggs some time after 1:30 a.m. (def exh A). Ms. Dillon had gone to a different bar with two female friends of hers and when one of them wanted to leave with Scruggs and his male friend, mainly to buy drugs, Dillon went along because she did not want her friend to be alone; she also needed a ride home. Dillon had no knowledge of Scruggs' violent history; no evidence on this point exists as to Brey. In any event, no evidence was elicited that would implicate comparative negligence by the late Ms. Brey or Ms. Dillon.

APPORTIONMENT

The Court of Appeals has sustained the apportionment of non-economic damages for personal injury between a negligent tortfeasor and an intentional tortfeasor under CPLR Article 16. Chianese v Meier, 98 N.Y.2d 270, 774 N.E.2d 722, 746 N.Y.S.2d 657 (2002). Ms. Chianese was assaulted by an intruder who was able to gain access to her apartment building because of a negligently maintained entrance.

The Chianese court offered no guidance when it reinstated the 50/50 allocation the jury had made between landlord and intruder. Professor David Siegel has observed in his Practice Review:



When the unintentional conduct of X subjects someone to an assault by Y, who is more at fault? One would be likely to assume the assailant is. Isn't it possible, though, that X's conduct, while unintentional is so flagrant in context that a larger share of fault can be imputed to X than to the deliberately violent Y?



(Siegel's Practice Review, Number 131, January 2003, p. 3).

Professor Siegel had earlier described as "egregious" the conduct of Nassau County jail officials in placing an informer in the same jail housing unit as the individual he informed on, [*3] who subsequently assaulted him. There had been a note in the informer's inmate file not to house him with this individual, but the jail staff failed to notice it. In Professor Siegel's view, the jury should therefore be free to ascribe more than a 50% share to the County. The Court of Appeals had decided that Article 16 was applicable in this case, Rangolan v County of Nassau, 96 N.Y.2d 42, 749 N.E.2d 178, 725 N.Y.S.2d 611 (2001).

What was striking about the decision-making process that led to the mistaken release of Franklin Scruggs was that it lacked oversight or any effective managerial controls - - highlighted by the number of state employees involved and the many opportunities to catch the error. Defendant, in its motion papers, has conceded that the communication passing between the defendant's employees was akin to "a game of telephone" (Interim Order, p. 6). The mistake was never brought out by a system of internal controls even after he was released - - that took additional violent felonies by Scruggs. Margaret Wolcott was, at the relevant time, inmate records coordinator for the Great Meadow Correctional Facility in Washington County, with responsibility for reviewing the commitment orders for the inmates at Great Meadow and calculating time served. When she did so for Scruggs' commitment order signed by the clerk of the court in Suffolk County: he was eligible for release.

But before the commitment order came across Ms. Wolcott's desk, she had seen the Second Department's re-sentencing decision in People v Scruggs, 201 A.D.2d 514, 607 N.Y.S.2d 410 (2d Dept 1994) and properly read its unambiguous text as vacating only one of his two concurrent 20-year to life sentences. She wrote a letter on September 12, 1997 to Hugh Conroy, the chief clerk of the Suffolk County court, which recognized that the vacateur was only on one of the two sentences, inquiring of Conroy if Scruggs was going to be re-sentenced on the vacated Reckless Endangerment charge (Interim Order, note 3).

Mr. Conroy testified that prior to the re-sentencing hearing before Judge Lefkowitz, he had received either a call or letter from the "Department of Corrections that said that there was a decision by an Appellate Court that indicated a re-sentence was necessary in one of the counts on a particular indictment." Conroy said that he called for the file, which contained the decision of the Second Department:



Q. And you know that having read the decision, that the Appellate Division wants this fellow [re-sentenced] on one count?

A. Yes.

In view of the foregoing, the fault is apportioned in both Steel and Dillon as follows: two-thirds (66 2/3%) on the part of the defendant State of New York and one-third (33 1/3%) to Franklin Scruggs.

I. DAMAGES: LINDA STEEL for MICHELLE BREY

Pain and Suffering

The body of Michelle Brey was found in a wooded area above the beach in Rocky Point at about 8:30 p.m. on Monday, October 12 (def exhs A and C). She was 35 years old. An autopsy was performed on Tuesday morning at 10 a.m. under the direction of Dr. James C. Wilson, the Deputy Chief Medical Examiner of Suffolk County.

Dr. Taff, the forensic pathologist, based his testimony on the Autopsy Report (cl exh 6); [*4] photographs from the autopsy taken by the Suffolk County Medical Examiner's Office (nine of which were admitted as cl exhs 5, 5A, 5C-5G, 5I, and 5J); and three police reports (def exhs A-C). He also examined sixteen glass slides that were representative sections of Brey's internal organs with a microscope and matched-up his findings with those Dr. Wilson made in the Autopsy Report. The conclusions Taff drew as to what Brey suffered before her death were credibly based and went unchallenged. Ms. Brey was raped anally and vaginally. Taff based this conclusion on the prominent contusions, shallow lacerations and hemorrhaging at the vaginal entrance and the contusions in the area of the anus as well as its dilation. (Cl exh 6, p. 9). Brey was subject to a number of blunt force traumas; she was beaten up, although Dr. Taff suggested she could have struck her head against a fixed object during the assault. Brey had a broken jaw, a bruise by the corner of her left eye and other bruises and abrasions on her body. Because of the swelling and discoloration, the bruises were definitely antemortem, which does not necessarily imply consciousness. Brey died of asphyxiation, not the blunt force traumas. . . based on the autopsy report and the photographs of Ms. Brey as she was received at the morgue untouched by the medical exam . . . she had part of this jacket stuffed into her throat and that it was tightly wrapped around her neck. So it's a double process of asphyxia, one where there's a choking off of blood around the neck and there's also an impossibility of breathing in air through her mouth by having this object stuff [ed] into the oral cavity.

Dr. Taff testified that a person may fight for air until losing consciousness from, at the low end, 15 to 20 seconds, to several minutes depending upon the nature of the struggle. The fight for air, which Dr. Taff likened to choking on food, is accompanied by fear of impending doom. In Ms. Brey's case, Dr. Taff concluded the struggle until asphyxiation lasted from two to five minutes, "maybe even beyond."

In view of the above, I find that Michelle Brey's pain and suffering amounted to $ 850,000.

Pecuniary Loss

A. Parental Guidance

Michelle Brey married Robert Rocheleau in 1986. They had three children: Steven who was born in 1989, Michael born in 1991 and Robert in 1993. The two split up about a year after the youngest of their three sons was born. What is being measured here is the pecuniary loss suffered by the children in "parental guidance . . . 'nurture and care . . . physical, moral and intellectual training . . . '" Zygmunt v Berkowitz, 301 A.D.2d 593, 594, 754 N.Y.S.2d 313, 314 (2d Dept 2003) (citations omitted). Such loss is to be distinguished from loss of companionship, mental anguish, sorrow or injury to feelings, which are not compensable in a wrongful death action (EPTL § 5-4.3; PJI 2:320).

Ms. Brey, not Mr. Rocheleau, raised the boys. That was clear, not only from the testimony of Brey's mother (Ms. Steel), sister (Laura Saklav), and a family friend (Peter Lambiaso), but that of Rocheleau as well. At trial, her ex-husband praised Michelle's care of the children during their marriage as "excellent. I don't think a father could ask for any better care of [*5] his kids."

According to Ms. Steel and Mr. Lambiaso, when the couple moved from a lake house owned by her family to their own house (both in Connecticut), Michelle did just about everything, including painting. She had some help from her mother, but virtually none from her husband.

When the couple separated, Rocheleau agreed that Michelle would have custody of their children. Brey could not afford the house on her own, it was foreclosed upon, and she and the three boys, then aged five, three, and one, moved into a mobile home, also in Connecticut. She was an assistant food service manager at a nursing home (Hillcrest) and then, when she and the boys moved to Long Island, took a similar position in food service at SUNY-Stony Brook. Brey would only take jobs that had on-site day care so that her children could be with her. Michael, the middle son, recalled his mother bringing them snacks at day care when she worked at the nursing home.

Ms. Steel stated that when living in the trailer, her daughter had no help, "Michelle did everything." Her mother recalls a wintry day when Michelle was working at Hillcrest:



I can remember the winter that I think Bobby was a year old, so they were one, three and five and there was this terribly snowy winter . . . And she had to get up in the morning, shovel out the driveway, shovel out her car, dress three babies, get them into the car and be at work by about seven o'clock.

Brey helped her sons with their school work, was there when they left for school and when they came home, took them camping, signed them up for Little League and soccer and drove them to and from these activities. Ms. Steel testified that her daughter taught the boys everything from riding a bicycle to playing computer games.

After a few years, Brey bought a condominium in Yaphank in Suffolk County. Rocheleau described the condominium as "beautiful. The community was fantastic. There were lots of kids their age. They had a beautiful pool complex . . . they spent a great deal of time by the pool." He concluded that the boys were "very happy." Steven, who was 15 years old at the time of this trial, testified that his mother had had some help at the condo (besides her mother):

Q. And in terms of just the day-to-day running of the household, who ran the house?

A. My mom. In Yaphank?

Q. Yes, sir.

A. And this other guy.

Q. What's the other fellow's name?

A. Jeff.

Q. All right, did Jeff and your mom stay together for a while?

A. Yeah, I'm pretty sure they were together.

The police report after Ms. Brey's body was found stated that the officers had spoken with the decedent's mother, sister and "boyfriend Jeffrey Roderick" (def exh A). [*6]

When Brey was killed in 1998, Steven, Michael and Robert were nine, seven and five years old, and the children came under the joint custody of their father and grandmother, Ms. Steel, but they lived with Steel and her husband in Malverne in Nassau County. At the time of Brey's death, Rocheleau was living in the New York City metropolitan area. Steel made a room available to him, he had a key to her house and would apparently visit fairly frequently. But, according to Steel, that fell off within six months when he moved upstate to Plattsburgh, and from then on, the boys would see their father at Christmas, a couple of weeks in the summer and perhaps at spring break.

Ms. Steel talked about the effect on Steven: in 2000, at the age of 11, he was going through a period where if he did not know his father's whereabouts for three or four hours, he would begin to hyperventilate - - "he had to know that his other parent was safe." In late 2003, Steven was doing poorly in school and when Steel inquired, responded that he was unable to talk to her and that, in fact, he had no one to talk to. Similarly, Michael, when asked on the stand what one particular thing he missed about his mother, responded that "it's harder to talk to grandparents than your actual mom and dad."

Steel continued that Steven became more withdrawn, was having stomach pains and missed 45 days of school, in 2003. Steel also mentioned what she described as "very troublesome" relationships with two girls.

Dr. William Kirby, a psychologist, took the stand on behalf of claimant. Dr. Kirby saw the three boys as a group for a while, and then individually for different periods of time. When asked about his sessions with Steven, Dr. Kirby responded that most of these were group sessions and they would talk about their transition into their grandmother's home, their anger with their mother's murderer and their attachment to their father, who was not, as we have seen, living with them.

The doctor recalled Steven as a person who had to talk to his father daily to make sure he was safe. In the beginning of 2004, Dr. Kirby said Steven had started to develop psychosomatic problems as well as depression. Kirby stated that he became obsessed with a young girl; that this clinging was an attempt to replace what he had lost.

Dr. Kirby's conclusions were general and lacked medical certainty. For example, "I would expect all of them to suffer recurrent bouts of depression throughout life course." After explaining that Steven would become anxious and engage in behavior in a relationship that would tend to push the individual away as a test, Dr. Kirby said, "I suspect it will happen in the other boys as they get into puberty and start forming relationships with the opposite sex." When asked about how much guidance the boys would expect from their grandmother, Dr. Kirby responded that such was open to question and has not been well considered in the literature.

Michelle Brey was there for her children every day. She worked exceptionally hard to raise them, and they could see this and learn from it. With that said, parts of claimant's case approached, if not crossed, the line between compensable guidance and noncompensable loss of companionship and sorrow. There was very slight evidence on school work, and except indirectly by their mother's exemplar, no testimony on moral, ethical or religious teaching; no instance where Ms. Brey told her children that something they did was wrong, why it was so and what to do instead.

No evidentiary foundation was established to go beyond the age of 21. (See PJI 2:320). I [*7] conclude the amounts in damages for past and future loss of guidance are as follows:

Steven (age 9 in October, 1998): $ 400,000 past; $ 300,000 future for six years;

Michael (age 7 in October, 1998): $ 400,000 past; $ 400,000 future for eight years;

Robert (age 5 in October, 1998): $ 400,000 past; $ 500,000 future for ten years.

B. Earnings and Household Services

Claimant called economist Dr. James Lambrinos as an expert witness to determine Ms. Brey's lost wages. Dr. Lambrinos used the following: i) her highest annual wages, which were earned in 1996 at Hillcrest Nursing Home, namely, $ 24,718; ii) alternate annual rates of wage inflation, 3.56% and 4.24%; iii) a lost earnings period of 15.25 years, or until the youngest child reached age 21; and iv) a figure of 24.4% to account for what would have been Ms. Brey's own personal consumption, to be subtracted from the total. Utilizing the 3.56% annual wage increase, which more accurately reflects the recent effects of inflation, the economist's figure of $ 491,577 less $ 119,945 for Ms. Brey's consumption, yields a net of $ 371,632.

Defendant did not call an economist. Defendant's cross-examination did not elicit any information to affect my conclusion that using the 3.56% annual wage increase, the 1996 Hillcrest wages as the benchmark and the youngest child's period of time to age 21 was unreasonable. Lambrinos did not break his result into the past and future. Slightly less than 6 years lapsed from Brey's death to trial; with a total period used by the economist of 15.25 years, an adequate approximation allocates two-fifths to the past and three-fifths the future: $ 148,653 past lost earnings and $ 222,979 future lost earnings for nine years.

As far as losses for household services, no evidence was presented of any services lost, and if so, the cost of replacing them. Schultz v Harrison Radiator Div. General Motors Corp., 90 N.Y.2d 311, 320-321, 683 N.E.2d 307, 660 N.Y.S.2d 685, 689 (1997); Kastick v U-Haul Company of Western Michigan, 292 A.D.2d 797, 799, 740 N.Y.S.2d 167, 170 (4th Dept 2002).

***In sum, claimant is entitled to the following damages:

Past:

Brey's pain and suffering $ 850,000

Loss of parental guidance 1,200,000

Lost earnings 148,653

$ 2,198,653 Total Past

Future:

Loss of parental guidance $ 300,000 for six years;

400,000 for eight years; and

500,000 for ten years.

Lost earnings 222,979 for nine years

$ 1,422,979 Total Future

The claimant Linda Steel as the Administratrix of the Estate of Michelle Brey (claim no. 100531) is awarded a total of $ 2,198,653 in past damages and $ 1,422,979 for future damages. The Clerk of the Court is directed to hold in abeyance the judgment of $ 3,621,632 pending a hearing under Article 50-B of the CPLR, which will be scheduled by the Court.

II. DAMAGES: STEPHANIE DILLON

In the fall of 1998, Stephanie Dillon, who was divorced, was living in Port Jefferson [*8] Station in Suffolk County with her mother and two daughters, ages six and two. She worked from 7 a.m. to 4 p.m., "pretty much every day," at a food store in nearby Mt. Sinai. Ms. Dillon had worked on Saturday, September 26, 1998 and, as noted at the beginning of this decision, went to a bar that evening with two of her friends. The children were left with a babysitter, a longtime friend of Dillon's, John Buongiovanni, who lived in Selden, and Dillon intended to pick them up at 11 p.m.

Claimant left the bar because she did not want her friend Angie to accompany two men by herself - - Scruggs and his friend, Derek. n3 Dillon also needed a ride.



n3 We have no last names, or for that matter initials, for Angie or Derek.



The four were driven by Derek in his car toward a Bay Shore friend's house to buy drugs for himself and Angie. They then drove back to Port Jefferson Station, where Derek and Angie went to a motel. Scruggs offered to drive Dillon home to pick up her children at the babysitter's in Selden. About two hours had elapsed since leaving the bar; it was about 11 p.m.

Dillon thought that she was going to be dropped off right away, and Scruggs would buy beer and cigarettes and return to the motel. Scruggs started driving, but did not take the direct route to Selden, which was only ten minutes away; he drove the back roads, stopping for beer and cigarettes. Scruggs then took a very secluded, wooded road, drove to a side street, parked the car and shut the lights off.

At this point, Ms. Dillon, who knew where she was and could walk to her destination, said she wanted to get out. Scruggs started the car up, rolled up the windows, first went the wrong way down a one-way street and then turned the vehicle around and headed into the woods. He cursed, "now we're going my fucking way." Claimant said, "I panicked . . . I was trying to kick at the windshield and the passenger window to get out of the car which I couldn't." Then she tried unsuccessfully to jump out of the open window on the driver's side.

Scruggs opened the car door, claimant had " fallen out on my head"; he grabbed her throat and got on top of her with his knees on her chest. Dillon pleaded, "Please don't kill me. I have two kids." Scruggs said, "I'm going to fucking kill you." With his knees on her chest and his hand on her throat, Scruggs started to undress her; Dillon recalls that she tried to get his hand off her throat because she could not breath. He dragged her to the hood of the car, slammed her head on the car and punched claimant in the face, stomach and chest, doing "a lot" of both.

Scruggs was still choking her, but she remained conscious. Scruggs then raped claimant and threw her in the back seat; she was naked, and he had a beer and a cigarette. Claimant believed she was going to be killed, so she asked for a sip of beer and threw the bottle into the woods intending it to serve as evidence to be discovered later. Scruggs began slamming her head on the car, and punched and choked her, while raping her again:



I couldn't hear anymore. I was looking up at the trees . . . I asked God to let me see my kids one more time before I left the earth because I knew I was going to die . . . I went unconscious.

When Dillon came to, Scruggs was punching her, and he then picked her up by the throat, threw her to the ground, kicked her and dragged her into the car. He drove back to the motel, a drive of five or ten minutes. When he arrived, Scruggs warned, "Don't say a fucking thing. [*9] Don't tell anybody what happened."

Dillon told Angie, and Scruggs started screaming. Derek said claimant should take the car and drive home with Angie. Dillon proceeded to get in the car without Angie; when she turned around, Scruggs was there. He put his hand to her throat and told her to shut up and drive to a particular address. Then he took the wheel, and drove back towards the woods, saying he had to look for a ring he had lost. Dillon started kicking on the windows and screaming; Scruggs then drove back to the motel.

Claimant left the motel, started walking quickly down the road, and made a phone call to Buongiovanni. She started crying; the babysitter offered to come get her, then Angie and Derek pulled up in the car and Derek told claimant to get in. When Dillon climbed into the back seat, Scruggs was there and he tried to act as if nothing had happened. Claimant finally arrived at the babysitter's house at quarter to five in the morning.

Dillon took her daughters home, fell asleep and when she awoke, said she could not physically move and had "bruises all over me, my legs, my arms, my face, my neck was swollen, my back, my chest, my stomach, my hands." She also was suffering from a toothache that likely was related to the assault.

Claimant did not return to work because she was afraid that Scruggs knew where she was employed. He also knew where she lived, and Dillon was fearful for herself and the children, keeping them close by in the yard. She did not leave the house for a week, and then only to have the tooth pulled. Claimant stated that once Scruggs was in custody, she was no longer afraid. Dillon slept on the living room couch for a month because the pain in her back and knees prevented her from climbing the stairs to the bedroom; she experienced head pains for six months after the attack.

After the rape, Dillon had nightmares and flashbacks about it. She drank more and harder alcohol and used drugs to mask the memory. Dillon secured a job cooking at McArthur Airport; she liked working because she would be too busy to think of the rape.

In 1999, claimant began a two-year relationship with a Joseph Colon, by whom she had a son on March 6, 2000. The relationship ended April 18, 2001, the day he raped her eldest daughter. Dillon lost custody of her children on April 24, 2001 because of neglect and misuse of alcohol. She did not get her son back until May 20, 2004 and her daughters a month later.

Dillon participated in a rehabilitation program which she completed in July 2003 and to date, has taken no drugs and used alcohol only once. Since January 2004, she has lived in her own two-bedroom apartment in West Babylon. Just before trial in early August, 2004, claimant had taken a leave from her job at Right Touch Deli in West Babylon, which she had started in February with the understanding that she would return; she needed time to get her daughters situated in school and attend to her son's heart condition.

Ms. Dillon still has nightmares about being violently assaulted, has avoided dealing with people and is friends now only with her sister. She said that in September of 2002, "I was going to go in front of a truck on a highway . . . I didn't want to be alive anymore. . . because the woman [Michelle Brey] was murdered. Why did I live . . .for my daughter to be raped." Her daughter's rape intensified her re-living Scruggs' sexual assault.

Claimant called to the stand Dr. Stephen Reich, a clinical psychologist with a private practice and faculty appointment. He also is the clinical director of the Forensic Psychology [*10] Group, which is a nationwide group of psychologists that Dr. Reich trains and supervises to provide forensic psychological evaluations.

Dr. Reich, who saw Ms. Dillon on March 15, 2004, diagnosed her with post traumatic stress disorder (PTSD), and major depressive disorder. Reich concluded that the stress disorder was permanent, but was more guarded as to the time frame the depression would last. Dr. Reich testified that claimant's PTSD symptoms were flashbacks, nightmares, bad dreams, and fear of approaching the geography where she was raped. On the depressive disorder, the doctor said he observed, in addition to feelings of depression, problems sleeping and concentrating.

Defendant put no psychologist or psychiatrist on the stand, which does not mean that Dr. Reich's views are necessarily adopted as given (PJI 1:90). Reich himself noted that the rape of claimant's daughter was a "profound event and it certainly caused depression in her. There's no question about it." Dr. Reich compared Dillon's re-living her rape to that of a case he had involving a child who was raped at age 5 and age 11. By the time of the August, 2004 trial, claimant had been off drugs and alcohol for a year, was living in her own two-bedroom apartment and, after her appointment with Dr. Reich, had had her children returned to her.

Reich acknowledged Dillon's strength and mental toughness, explaining how she had overcome her difficult childhood, which he described as "straight out of Cinderella." She was not permitted to play, instead she cleaned; Dillon was not allowed to use the washer and dryer in her parents' house, but had to go out to a laundromat to wash her clothing. Yet Dr. Reich concluded that "she functioned beautifully." As she told him, "I had to function." Dr. Reich reported that in high school, claimant was not very social and did not have a network of friends; her social relationships were with one friend at a time.

In view of the above, I find that Ms. Dillon's past pain and suffering amounts to $ 1,300,000. Dillon was born in 1973, at the time of trial was 31 years old and has a life expectancy of 49 years. n4 By 2004, claimant had begun getting her life in order; as Dr. Reich observed she had in the past surmounted difficulties and functioned well, and this was evident on the witness stand, from which Dillon projected a resolute character. While claimant will not likely ever be completely free of the memory of her rape and beating, her future damages amount to less than those attributable to the rape and the six years leading up to this trial: the future pain and suffering amounts to $ 650,000.



n4 PJI, vol 1B, App A.



***

The claimant Stephanie Dillon (claim no. 100814) is awarded a total of $ 1,300,000 in damages for past pain and suffering and $ 650,000 for future pain and suffering. The Clerk of the Court is directed to hold in abeyance the judgment of $ 1,950,000 pending a hearing under Article 50-B of the CPLR, which will be scheduled by the Court.



New York, New York



February 3, 2005

ALAN C. MARIN

Judge of the Court of Claims

Linda Steel, etc., respondent-appellant, v State of New York, appellant-respondent. (Claim No. 1) (Claim No. 100531) Stephanie Dillon, respondent-appellant, v State of New York, appellant-respondent. (Claim No. 2) (Claim No. 10081)



2003-01566, 2003-08195



SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT



11 A.D.3d 673; 782 N.Y.S.2d 924; 2004 N.Y. App. Div.



May 20, 2004, Argued











October 25, 2004, Decided



NOTICE: [***1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING THE RELEASE OF THE FINAL PUBLISHED VERSION.



SUBSEQUENT HISTORY: Later proceeding at Steel v. State, 6 Misc. 3d 1030A, 2005 N.Y. Misc. , 2005 NY Slip Op 50229U (N.Y. Ct. Cl., Feb. 3, 2005)



PRIOR HISTORY: Steel v. State, 307 A.D.2d 919, 762 N.Y.S.2d 883, 2003 N.Y. App. Div. (N.Y. App. Div. 2d Dep't, 2003)




COUNSEL: Eliot Spitzer, Attorney-General, Albany, N.Y. (Peter H. Schiff and Michael S. Buskus of counsel), for appellant-respondent.



DiJoseph & Portegello, P.C., New York, N.Y. (Arnold E. DiJoseph III of counsel), for respondent-appellant Linda Steel.



Palermo, Palermo & Tuohy, P.C., Smithtown, N.Y. (Steven J. Palermo of counsel), for respondent-appellant Stephanie Dillon.



JUDGES: ANITA R. FLORIO, J.P., THOMAS A. ADAMS, BARRY A. COZIER, ROBERT A. LIFSON, JJ. FLORIO, J.P., ADAMS, COZIER and LIFSON, JJ., concur.



OPINION: [*673] [**924] DECISION & ORDER

In related claims to recover damages for personal injuries and wrongful death, the defendant appeals, as limited by its brief, from so much of an order of the Court of Claims (Marin, J.), dated January 15, 2003, as denied that branch of its cross motion which was for summary judgment dismissing the claims on the ground that it was not negligent and granted the claimants' separate motions for summary judgment on the issue of liability and the claimants, Linda Steel and Stephanie Dillon, separately cross-appeal from so much of the same order as determined [***2] that their claims are subject to the application of CPLR article 16. Linda Steel also appeals from so much of an order of the same court dated July 7, 2003, as, upon, in effect, reargument, adhered to its original determination regarding the application of CPLR article 16, and the cross appeal by Stephanie Dillon brings up for review so much of the order dated July 7, 2003, as, upon, in effect, reargument, adhered to that original determination (see CPLR 5517[b]).

[*674] ORDERED that the cross appeals from so much of the order dated January 15, 2003, as relates to the application of CPLR article 16 are dismissed, without costs or disbursements, as that portion of the order was superseded by the order dated July 7, 2003, made upon reargument; and it is further,

ORDERED that the order dated January 15, 2003, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the order dated July 7, 2003, is affirmed insofar as reviewed, without costs or disbursements.

Contrary to the defendant's contention, the Court of Claims did not err by, in effect, determining that its actions were the proximate cause of the claimants' [***3] injuries (see Derdiarian v Felix Contr. Corp., 51 N.Y.2d 308, 315, 414 N.E.2d 666, 434 N.Y.S.2d 166; Campbell v Cluster Hous. Dev. Fund Co., 247 A.D.2d 353, 354, 668 N.Y.S.2d 634; Pagan v Goldberger, 51 A.D.2d 508, 382 N.Y.S.2d 549; cf. Dunn v State of New York, 29 N.Y.2d 313, 277 N.E.2d 647, 327 N.Y.S.2d 622; Williams v State of New York, 308 N.Y. 548, 127 N.E.2d 545).

[**925] The claimants' specific contentions regarding the application of CPLR article 16 to this case are unpreserved for appellate review, and in any event, are without merit (see Siler v 146 Montague Assocs., 228 A.D.2d 33, 652 N.Y.S.2d 315).

The claimants' remaining contentions are without merit.

FLORIO, J.P., ADAMS, COZIER and LIFSON, JJ., concur.

Steel v. State, 307 A.D.2d 919, 762 N.Y.S.2d 883 ( 08/04/2003)

[1] NEW YORK SUPREME COURT, APPELLATE DIVISION, SECOND DEPARTMENT


[2] 2002-02389


[3] 307 A.D.2d 919, 762 N.Y.S.2d 883, 2003


[4] August 04, 2003


[5] LINDA STEEL, ETC., RESPONDENT,
v.
STATE OF NEW YORK, APPELLANT. (MATTER NO. 1)
(CLAIM NO. 100531)
STEPHANIE DILLON, RESPONDENT,
v.
STATE OF NEW YORK, APPELLANT. (MATTER NO. 2)
(CLAIM NO. 100814)


[6] Eliot Spitzer, Attorney-General, New York, N.Y. (Peter H. Schiff and Michael S. Buskus of counsel), for appellant.


[7] Parker & Waichman, P.C. (DiJoseph & Portegello, P.C., New York, N.Y. [Arnold (*2)e. DiJoseph III] of counsel), for respondent Linda Steel.


[8] Palermo & Palermo, Hauppauge, N.Y. (Steven J. Palermo of counsel), for respondent Stephanie Dillon.


[9] Fred T. Santucci, J.P. Sandra J. Feuerstein Nancy E. Smith Daniel F. Luciano, JJ.


[10] This opinion is uncorrected and subject to revision before publication in the Official Reports.


[11] (*1)


[12] Argued - February 25, 2003


[13] DECISION & ORDER


[14] In related claims to recover damages for personal injuries and wrongful death, the defendant appeals, as limited by its brief, from so much of an order of the Court of Claims (Marin, J.), dated January 28, 2002, as directed a hearing on that branch of its cross motion which was for summary judgment dismissing the claims on the ground that the defendant was not negligent and as denied those branches of its cross motion which were for summary judgment dismissing the claims on the ground that they were barred by the doctrines of governmental immunity and judicial immunity.


[15] ORDERED that the appeal from so much of the order as directed a hearing to aid in the determination of that branch of the cross motion which was for summary judgment dismissing the claims on the ground that the defendant was not negligent is dismissed; and it is further,


[16] ORDERED that the order is affirmed insofar as reviewed; and it is further,


[17] ORDERED that one bill of costs is awarded to the respondents.


[18] The Court of Claims properly denied those branches of the defendant's cross motion which were for summary judgment dismissing the claims on the ground that they were barred by the doctrines of governmental immunity and judicial immunity. The actions of the employees of the County Court and Department of Correction which resulted in the premature release of the assailant were ministerial in nature and not entitled to governmental immunity (see Lauer v. City of New York, 95 NY2d 95, 99). Furthermore, the actions of the non-judicial County Court employees which resulted in the erroneous transmittal of the Judge's sentencing determination regarding the assailant to the Department of Correction were not an integral part of the judicial decision-making process entitled to judicial immunity (see Mosher-Simons v. County of Allegany, 99 NY2d 214; Weiner v. State of New York, 273 AD2d 95).


[19] The appeal from so much of the order as directed a hearing to aid in the determination of that branch of the defendant's cross motion which was for summary judgment dismissing the (*3)claims on the ground that it was not negligent is not appealable as of right, and since leave to appeal has not been granted, it must be dismissed (see Rosen v Swarzman, 296 AD2d 392). Any party aggrieved by an order deciding that branch of the cross motion may take an appeal from that order (id.).


[20] SANTUCCI, J.P., FEUERSTEIN, SMITH and LUCIANO, JJ., concur.