New York State Court of Claims

New York State Court of Claims
MASON v. THE STATE OF NEW YORK, # 2018-029-066, Claim No. 125234


After a trial on damages, claimant proved she sustained two serious injuries as a result of a collision involving a State Police vehicle. The court awarded $350,000 in non-economic damages only, reduced to $245,000 after application of claimant's 30% comparative fault.

Case information

UID: 2018-029-066
Claimant(s): DAWN MASON
Claimant short name: MASON
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 125234
Motion number(s):
Cross-motion number(s):
Claimant's attorney: LEAV & STEINBERG, LLP
By: Vincent F. Provenzano, Esq.
By: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:
Signature date: July 5, 2018
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


After a bifurcated trial addressing the issue of liability only, the court found that defendant was 70% responsible for personal injuries sustained by claimant on June 20, 2014, in an accident involving a State Police vehicle and claimant's vehicle while they were traveling on the Taconic State Parkway ("Taconic") at the intersection with Carpenter Road in East Fishkill (see Mason v State of New York, UID No. 2017-029-053 [Ct Cl, Aug. 10, 2017]). Claimant sustained physical injuries and her car struck two other vehicles. The court found that the State Trooper acted with reckless disregard for the safety of others when he crossed the southbound lanes of the Taconic in pursuit of another vehicle, and that claimant bore some responsibility for the accident due to her failure to yield to an emergency vehicle or to attempt to avert the collision.

A trial limited to the issue of claimant's damages was held on May 2-3, 2018. Claimant testified on her own behalf and called one additional witness, Lawrence Kusior, M.D. Defendant did not call any witnesses. The following claimant's exhibits were admitted into evidence: photographs of vehicle damage and claimant's injuries (Exhs. 1A-1F); medical records (Exhs. 2-4); X-rays (Exhs. 5-6); and doctor's notes (Exh. 7). Defendant did not submit any exhibits. Thereafter, the parties were granted additional time to order transcripts and then submit written summations. Claimant filed a written summation on May 17, 2018. The court has not received a written summation from defendant.(1)

Claimant testified that she is left-handed and was 41 years old at the time of the trial. The impact from the accident caused her to hit her head, left arm and both knees. While trapped in her vehicle, she felt pain to her head, left arm and her knees. After the jaws-of-life freed her from the damaged vehicle, an ambulance brought her to St. Francis Hospital, where she was treated for head trauma and left arm injuries. She also suffered bruising to her cheek and stomach, and felt pain in her neck, back and left arm. An X-ray of her left arm showed a fracture of the left distal ulna. She was discharged with her left arm in a sling, a prescription for the pain medication hydrocodone, and instructions to follow up with an orthopedic surgeon.

On June 23, 2014, claimant was seen by Dr. Patrick Messerschmitt, an orthopedic surgeon with Orthopedic Associates of Dutchess County ("Ortho Assoc."). He took another X-ray of her left arm, which confirmed a comminuted fracture of the distal ulna. She complained of pain in her left arm and her right knee. He referred claimant to Dr. William Colman, also with Ortho Assoc., for her right knee. On June 30, 2014, Dr. Messerschmitt performed surgery on claimant's left arm, inserting an Acumed plate and surgical screws. On discharge that same day, she was prescribed Oxycodone for pain. At a post-surgical appointment, she was prescribed physical therapy for her left arm.

Claimant saw Dr. Colman concerning her right knee. An MRI on July 6, 2014 showed a fractured lateral tibial plateau. The doctor put her right knee in a brace and prescribed physical therapy. She underwent nine months of physical therapy twice a week for her arm, and six to eight weeks of physical therapy twice a week for her right knee. She was examined and treated at Ortho Assoc. over a period of nearly four years for her left arm and more than two and one-half years for her right knee. She next saw Dr. Kusior. She had pain and loss of range of motion in her arm, which is permanent. The doctor prescribed nonsteroidal anti-inflammatory drugs ("NSAIDS") for pain. Her last follow-up appointment with Dr. Kusior was on March 28, 2018. She complained of pain and loss of range of motion.

Claimant works as a probation officer for the Department of Corrections and Community Supervision, and was working at Sing Sing Correctional Facility at the time of trial. She was out of work for approximately four months and had to exhaust all of her sick time and part of her vacation time. Her doctor wrote her a medical excuse from work. Her take-home pay is $1,150.00 every two weeks. She received $8,000.00 from No-Fault insurance.

Claimant returned to work in the same position and with the same duties, but she still had pain in her left arm and right leg. Her duties at work were the same, including clerical work, writing and typing up reports. She still experiences sharp and burning pain, and she cannot turn her hand all the way or lift much weight without experiencing pain. She takes NSAIDS for pain approximately two or three times a week. Claimant described her limitations at that time resulting from her injuries: pain and discomfort at the surgical site; pain and discomfort going up and down stairs; difficulty sleeping, grooming, and dressing, difficulty with household activities, writing and typing; inability to straighten arm fully; and interference with her ability to care for her daughter, who was ten years old at the time of the accident. She drives past the accident scene to go to work and it upsets her. She has nightmares. Her physical limitations have interfered with her relationships; her mother had to come live with her, her fiancé and her daughter for four months after the accident.

On cross-examination, claimant testified that she returned to work on October 16, 2014, with no actual loss of income and no out-of-pocket medical costs. After her discharge from physical therapy, she did not seek treatment for nine months. Dr. Kusior has recommended against removal of the plate and screws. She continues to follow up with him every six months. She was not treated for her neck or her back, and did not have a neck collar at any time since she was in the emergency room after the accident.

Dr. Lawrence J. Kusior was accepted by the court as an expert in orthopedic surgery. He testified as claimant's treating physician.

Dr. Kusior first met claimant in 2014, and became her treating physician as of December 18, 2015. She was referred to him by Dr. Messerschmitt. She presented with complaints of a left arm fracture, back pain and right knee pain. The doctor testified about what the X-rays and MRI showed, claimant's injuries, and her treatment. He concluded that she experienced pain within two degrees of the arm fracture, had sensory loss in the area of her surgical scar, and a ten degree loss of range of motion. He described the arm injury as a fracture of the distal end of the ulna bone, explaining that: the ulna and the radius are two bones in the arm; the radius rotates around the ulna; and claimant's ulna had been fractured and shifted toward claimant's pinky. He also described the knee injury as a lateral tibia plateau fracture.

In Dr. Kusior's expert opinion, after reviewing claimant's X-rays, MRI results, and medical records, and examining her, claimant has permanently lost some range of motion in her left arm; the plate and screws in her left arm are permanent and will be palpable due to location; she has permanent pain, soreness and sensory loss in her left arm; there is a possibility of arthritic changes in the future in her right knee due to the tibial fracture; and her injuries were proximately caused by the accident.

The doctor also testified that the fee for removal of the plate and screws would be between $3,000.00 and $5,000.00, and claimant would need occupational therapy three times a week for six to eight weeks at $60.00 a visit.

On cross-examination, Dr. Kusior provided that the plate sits proximal to the ulnar styloid. Pressing on the plate causes pain. The plate itself irritates soft tissue. Claimant's pain in her left arm is localized to the site of the plate. On physically examining claimant, Dr. Kusior found no systems issues, negative crepitance on range of motion, negative redness or infection, and normal range of motion in all movements except supination loss of ten degrees. He concluded that a burning sensation claimant had was episodic and random, explained that sensory loss at the scar is normal, and recommended keeping the plate and the screws in place due to the fracture location, unless it significantly affects claimant's life. As to the right knee, he concluded that the tibial fracture did not limit claimant at that time. He acknowledged his findings contained in Exhibit 4 (pp. 152-153), made after claimant's follow-up visit on October 6, 2017. The doctor found that claimant's arm fracture has healed, the plate and screws were in place and not loosening, she has full range of motion, no resistance and no deficit in strength. He recommended against having the plate and screws removed at that time, but could do so at any time (id.).

Dr. Kusior also acknowledged the findings of Dr. Colman contained in Exhibit 4 (pp. 154-155), made after claimant's follow-up visit on October 28, 2016. Dr. Colman noted that claimant complained of increased pain in her right knee going up and down stairs, which was relieved with rest. His impression was that she had "patellofemoral pain after dashboard injury."

As treatment he recommended "conservative weight-loss quad strengthening." Her weight is noted as 205 pounds and her height as 5' 2" tall. Dr. Kusior then acknowledged his findings contained in Exhibit 7, made after the follow-up with claimant on March 28, 2018. The doctor found that claimant's active problems were the closed fractures, forearm pain, internal derangement of her right knee, joint pain in her knee, and being overweight. He found that surgery to remove the plate was not required at that time, that claimant did have "some resistance with range of motion," and Ortho Assoc. recommended she follow up with her primary care physician for weight management.

Claimant's medical records establish the following facts: writing with her left hand caused claimant pain in her forearm/wrist after the surgery (Exh. 4, p. 221); claimant was given exercises to improve the functional use of her left arm (id.); an MRI of claimant's right knee revealed a "[n]ondisplaced subchondral fracture of the lateral tibial plateau with surrounding marrow edema," "[j]oint effusion and popliteal cyst" (Exh. 4, p 151).

"[A]n award of damages to a person injured by the negligence of another is to compensate the victim, not to punish the wrongdoer" with the goal being "to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred" (McDougald v Garber, 73 NY2d, 246, 253-254 [1989]). With respect to pain and suffering, any award for such injuries "is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact" (Leto v Amrex Chem. Co., Inc., 85 AD3d 1509, 1511 [3d Dept 2011], quoting Petrilli v Federated Dept. Stores, Inc., 40 AD3d 1339, 1343 [3d Dept 2007]). "[F]actors to be considered in evaluating such awards include the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury," including the effect on the capacity to enjoy life, engage in daily tasks and/or activities that once brought pleasure, as well as any loss of self-esteem (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]).

An award also may include an amount for a claimant's economic damages. "The basic rule is that loss of earnings must be established [by claimant] with reasonable certainty, focusing, in part, on [claimant's] earning capacity both before and after the accident" (Johnston v Colvin, 145 AD2d 846, 848 [3d Dept 1988]; see Shubbuck v Conners, 15 NY3d 871 [2010]). First, however, it is claimant's burden to show, by a preponderance of the credible evidence, that the accident was a substantial factor in causing the injury suffered. In this regard, where there is evidence that the injury may have been caused by other factors not within defendant's control, while claimant need not exclude every other cause of the injuries alleged, "the proof must render those other causes sufficiently 'remote' or 'technical' to enable the [trier of fact] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence" (Gayle v City of New York, 92 NY2d 936, 937 [1998] [citations omitted]).

As a preliminary matter, the court notes that claimant and Dr. Kusior provided generally sincere and forthright testimony. The court concludes, based upon a preponderance of the credible evidence, that claimant is entitled to an award of only non-economic damages to justly and fairly compensate her for the injuries she sustained as a result of her accident on June 20, 2014. To the extent that claimant sustained, or will sustain, any economic loss as a result of the accident and her injuries, she did not provide concrete evidence to support an award by the court. Claimant admitted that she did not lose any income while she was out of work recovering from her injuries, and that she did not have any out-of-pocket medical expenses. She returned to her job and continued to perform the same duties she had previously performed. She did not testify to a loss of income or earnings in the future, and she did not present any other witnesses, lay or expert, or evidence of such an anticipated loss. Claimant did testify that she exhausted her sick time while recovering, but she presented no evidence quantifying the value of her sick time. Any award for economic loss would be entirely speculative.

The court finds that claimant did prove, by a preponderance of the evidence, that she suffered two serious injuries as a result of the accident, including a fractured ulna bone in her left forearm, and a fracture of her tibia plateau in the right knee. Defendant did not dispute these injuries at trial or post-trial in a written closing summation, and did not present an expert to dispute the opinions of claimant's expert Dr. Kusior. The court credits claimant's testimony that because of the accident and the resulting injuries, she experienced significant pain and mental suffering, her activities were curtailed and personal relationships negatively affected, and she continues to experience pain, although it has lessened with time.

The medical records show that the fractured ulna itself has fully healed, although claimant will continue to have a scar from the surgery visible on her forearm, as well as the resulting loss of sensation. The court finds that at least some of the pain claimant has in her forearm is caused by the presence of the plate and screws that were surgically inserted, which at some point claimant could choose to have removed. Dr. Kusior testified that he recommended against removal at that time, but removal could become a better option in the future if the plate shifted or claimant's pain increased. As of March 28, 2018, Dr. Kusior stated in his examination findings that he did "not think surgery would benefit her to take out the plates to improve her range of motion. At this point [. . . ] She can follow back up if her plate become[s] sore and symptomatic" (Exh. 7). The plate and screws could very well remain in claimant's arm for a significant period of time, but they are not permanent as Dr. Kusior concluded.

As for claimant's right knee, the medical records show that as of March 28, 2018, claimant continued to have an "internal derangement" of her knee and to suffer from joint pain in her knee (Exh. 7). The records also show repeated recommendations that claimant lose weight. Dr. Kusior opined that claimant would not significantly improve and could have arthritic changes in the future. The court finds that claimant proved the permanence of her knee injury, but she failed to establish that it is not within her power to improve it, and the concomitant pain.

Based on all the foregoing, the court finds that claimant suffered damages in the total amount of $350,000.00, comprised of $100,000.00 for past pain and suffering and $250,000.00 for future pain and suffering. The court finds that sum constitutes fair and reasonable compensation for claimant's injuries.

Award for Past Damages

Past Pain and Suffering $100,000.00

Award for Future Damages

Future pain and suffering $250,000.00

The total damages set forth above must be reduced by the percentage of claimant's comparative fault as found in the court's prior decision on liability. After applying claimant's 30% comparative fault to the total damages determined herein, the court awards Ms. Mason the amount of $245,000.00, together with interest from August 10, 2017, the date of the court's decision establishing liability. In addition, to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act 11-a(2). All motions upon which the court reserved decision at trial are hereby denied. The Clerk of the Court is directed to enter judgment accordingly.

July 5, 2018

White Plains, New York


Judge of the Court of Claims

1. The transcript was not ordered. The court's decision is based on the audio recording made at the trial.