Brandon William Gardner, INDIVIDUALLY AND AS ADMINISTRATOR WITH WILL ANNEXED OF THE ESTATE OF WILLIAM G. GARDNER, CYNTHIA ANN GARDNER, AND RYAN J. GARDNER, Claimants,
State of New York, Defendant.
For Claimants: ANTHONY F. ENDIEVERI, ESQUIRE.
For Defendant: ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Patricia M. Bordonaro, Esquire Assistant Attorney General.
DIANE L. FITZPATRICK, Judge of the Court of Claims.
The Court awarded damages to Claimants for Decedent's personal injuries and on behalf of Decedent's distributees for his wrongful death in an amended Decision dated November 19, 2012.  Pursuant to CPLR 4545, Defendant requested a collateral source hearing which was held on May 30, 2013. The Court has considered the testimony, exhibits, and posttrial submissions and finds that Defendant is entitled to some collateral source deductions as set forth herein.
At issue at the hearing was whether the Court's award to Decedent's children and only distributees, Brandon and Ryan Gardner, for loss of parental support and loss of inheritance should be offset by the payments they received from the Armed Forces Survivor Benefit Plan, the Social Security Administration for Survivor Insurance Benefits, and from the TIAA-CREF retirement account distribution. The parties stipulated that other sums paid to the children are life insurance and not subject to an offset by CPLR 4545. 
At the time of Decedent's death, he was retired from the United States Air Force and receiving full pension benefits. Normally, armed services retirement pay terminates upon the retiree's death.  Title 10 of the United States Code Sections 1447-1455 (10 USC §§ 1447-1455) establishes a Survivor Benefit Plan which permits a portion of a retiree's retirement benefit to be paid to their surviving beneficiaries. Decedent enrolled in the program for "child-only full base amount coverage."  His enrollment provided that in the event of an untimely death, his children would receive a share of 55 percent of his base salary until they each reached the age of 18, married, or until the age of 22 if they remained full-time students. The boys received equal shares of the benefit until Brandon reached the age of 22 in 2006. Ryan then received the entire benefit amount from 2007 until he turned 22 in 2010;  Ryan received a total of $180, 932.25,  and Brandon received a total of $50, 485.25. Both boys received IRS 1099-R forms annually for the payments each received.  Decedent paid a premium of $24.44 monthly for the surviving benefit coverage in the form of a reduction to his retirement pay.  The premium was a pre-tax deduction.
Decedent retired in August 2001. 
Ryan Gardner also received Social Security Survivors Benefits which were paid to his mother, Cynthia Gardner, on his behalf from January 2004 through June 2006, in the amount of $41, 475.00.  He received an additional lump-sum death payment of $255 in March 2004. 
Both boys received $12, 997.27 each, in a lump-sum payment from Decedent's TIAA-CREF retirement annuity account, which Decedent obtained through his employment with the Jet Propulsion Laboratory to provide retirement income for himself. Decedent began the annuity when he started his employment with the Jet Propulsion Laboratory in October 2002. Because Decedent was not receiving benefits from the annuity at the time of his death, his beneficiaries received the accumulated funds in the account.
It is Defendant's position that all of these payments are collateral sources under CPLR 4545 (c) and it is entitled to an offset to the Court's awards for loss of support and inheritance.  To support its position, the State called Anthony Riccardi, a self-employed economist and actuary, to discuss these payments to Decedent's sons, the application of CPLR 4545, and his opinion as to the correspondence of these payments to this Court's damages Decision on the wrongful death action.
In Mr. Riccardi's opinion, the Armed Forces Survivor Benefit Plan is not life insurance, but a pension annuity which is, therefore, a collateral source under CPLR 4545. The survivor's benefit, Mr. Riccardi testified, was in the form of an annuity, paying benefits over time and treated as income to the beneficiary. Mr. Riccardi also noted that based on his understanding of the plan, no actuarial determined premium was paid for this benefit but, rather, a set sum was deducted from Decedent's retirement pay. He felt that this benefit should be offset from the Claimants' award for loss of support or inheritance because the Court made reference to Decedent's income in arriving at those awards. Mr. Riccardi also testified that the Social Security survivor benefits paid to Ryan were a collateral source offset for the loss of support portion of the damages award.
The payment to Brandon and Ryan Gardner from TIAA-CREF, Mr. Riccardi opined, was an offset to the Court's loss of inheritance awards. Mr. Riccardi testified that this was an annuity distribution of accumulated unpaid equity.
In opposition to Defendant's position, Claimants argue that the prohibition in the statute creating the Survivor Benefit Plan provides that no annuity payable under the plan is subject to execution, levy, attachment, garnishment, or other legal process, thus, preventing a deduction as a collateral source under CPLR 4545 (c). Claimants also dispute that this benefit is a collateral source under the statute, arguing that the Survivor Benefit Plan was "like life insurance, " and that none of ...