New York State Court of Claims

New York State Court of Claims
AUGHTRY v. THE STATE OF NEW YORK, # 2019-029-033, Claim No. 123103

Synopsis

After the court (Scuccimarra, J.) adjudicated the State 100% liable for negligence in a Sing Sing bathhouse assault on claimant, the court (Mignano, J.) held the trial on damages and awarded claimant a total of $655,000.00 in damages, comprised of $225,000.00 for past pain and suffering, and $430,000 for future pain and suffering.

Case information

UID: 2019-029-033
Claimant(s): PEREZ AUGHTRY
Claimant short name: AUGHTRY
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123103
Motion number(s):
Cross-motion number(s):
Judge: STEPHEN J. MIGNANO
Claimant's attorney: SIVIN & MILLER, LLP
By: Glenn D. Miller, Esq. and Andrew C. Weiss, Esq.
Defendant's attorney: LETITIA JAMES, ATTORNEY GENERAL
By: Terrance K. DeRosa, Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 22, 2019
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

The claim alleges that on July 27, 2012, claimant was assaulted by other inmates while in the bathhouse of Sing Sing Correctional Facility, as a result of the State's negligent failure to provide adequate security and take reasonable precautions against this foreseeable risk of attack. After a trial on liability only, Judge Scuccimarra found the State 100% liable (decision filed May 11, 2018). By administrative order dated June 11, 2018, the claim was transferred to this court's individual assignment calendar, and a trial on damages was held on February 26 and 27, 2019.(1) The parties submitted written post-trial summations on or before April 26, 2019.

Claimant testified on his own behalf and he called two expert witnesses, a plastic surgeon and a dentist. Defendant also called two expert witnesses, a dentist and a neurologist. Claimant's admitted exhibits included photographs (Exhs. 1-5), medical records (Exhs. 9-10), the Inmate Injury Report (Exh. 7), his experts' curricula vitae ("CV") (Exhs. 12-13), and a diagram (Exh. 14). Defendant's admitted exhibits included only the two defense experts' CVs (Exhs. A and C).

Claimant testified that he is 37 years old and lives in Buffalo, New York.(2) At around noon on July 27, 2012,

"[W]e was escorted for Ramadan showers, and during that time, it's the -- it's a holy month, where people go shower more than other people, and we was escorted to the bathhouse, and as I walked in the bathhouse, I took my clothes off, I put my clothes in the net bag, I showered, and when I was done showering, I walked -- started drying my feet and once I bent down to dry my feet, I was attacked by a bunch of people, and as I was being attacked, somebody grabbed me, and somebody cut me from my head, and they was punching me, and from there, I said, get off of me, and they said, no, we're going to kill you. So then I was cut across my back, and as I was cut across my back, somebody started punching me and kicking me more, so I'm screaming for police, help, CO, help. Nobody came, so I kept screaming. Nobody still came, and they said, shut up before we kill you." (2/26 T: 19-20).(3)

He was naked during the attack and being held up by the wall. The attackers had clothes on and some wore heavy, hard-soled state boots. They punched him with uppercuts to the face and head, particularly the area that was cut, and kicked him in the back. After two or three minutes the attackers "took off." Claimant was bleeding badly and felt weak and dizzy. He wrapped a towel around his head but was afraid he would bleed to death. Blood was "squirting everywhere" (2/26 T: 20-25).

Correction Officer Wright found claimant and somebody helped him walk to the infirmary. Blood ran down his body onto the floor as they walked. It took around five minutes. The staff at the infirmary tried to stop the bleeding by wrapping another towel, then bandaging around his head, but he continued to bleed. Blood was on the floor, it soaked his boxers and sneakers and was all over his legs and body. He asked the staff to get an ambulance because he was bleeding to death and was told one was coming after security checks were completed. An ambulance arrived after about 40 minutes. He asked the staff if he was going to die and they told him he needed to calm down. Claimant testified that his whole head was in pain and the right side of his face, where he was cut, was "burning." He did not receive any pain medication either in the infirmary or in the ambulance on the way to Westchester County Medical Center ("Medical Center"). The cut on his back was burning and hurting as he lay in the ambulance. They put an IV in his arm to replenish his fluids. The pain he felt was a 10 on a pain scale of 0 to 10 (2/26 T: 26, 30-32, 36, 39-43).

After arriving at the Medical Center, claimant was transferred to a bed where his wounds were sutured. He received medication in his IV to lessen the pain as he was receiving the sutures. Claimant kept asking for more because the procedure still hurt. The doctor kept "shooting . . . more" in the IV but the sutures continued to hurt, so claimant bit down on his pillow and gripped his bed until they finished suturing him (2/26 T: 40-44). When the Medical Center was about to discharge him, claimant attempted to stand and he fainted, falling to the floor. He woke up back in bed with an IV in his arm. He could not remember exactly how long he spent in total at the Medical Center (2/26 T: 44).

After he was discharged, C.O.s took him back to Sing Sing where he was brought to the infirmary. He remained in a lot of pain. The sutures were irritating him and it hurt to lie on his back so he tried sleeping sitting up. He told the nurse he was in pain and they gave him medication for the pain, but it did not work. They took the stitches out in 10 to 14 days. His face was swollen and he looked "altered" (2/26 T: 45-47). Claimant's face still hurt, he started to get "migraines" and his jaw started locking. He was seen by a doctor and tests performed on his face. It was determined that claimant had nerve damage. They prescribed him stronger medications, but they have not helped (2/26 T: 47-49).

The right side of claimant's jaw hurts him and the pain gets worse when he eats certain foods, like subs. When asked which part of his jaw hurt the most, claimant pointed to the area right below his earlobe. The locking and clicking come and go but can last for days. He continues to have migraines that radiate from the pain on the right side of his face, his painful locking and clicking jaw, as well as shooting and burning pain around the scar on his face. His head has spots that are numb and others that hurt. The scar runs from near his right eye, across his right cheek and ear, then down his neck. He testified that the scar has "messed [him] up." He thought of himself as a "pretty boy" (2/26 T: 52). Now people stare at his face. He has become paranoid and upset, not wanting anyone to go behind him or to come near his face. He also suffers from nightmares about being stabbed, waking up with dream-reality confusion, believing that others around him are trying to stab him. Sometimes he gets violent, which has affected relationships with loved ones. He started choking his fiancée once when it happened, and another time he slammed the dresser at his mother's place. The nightmares were most frequent right after he was released from prison, but continued intermittently over the next six years (2/26 T: 50-63).

Before claimant went to prison, he was an amateur boxer, winning all 12 of his officiated matches, and before that he participated in Golden Gloves as a teenager. Amateur boxers use safety equipment like helmets and mouth guards. Claimant testified that he did not sustain any injuries to the head, face or jaw when he boxed as an amateur. He continued to train for 13 years while in prison, then started professionally boxing after his release. His first professional match took place in September 2018. Claimant was afraid of getting hit on the right side of his face during the match, so he tried to protect it, backing away from his opponent. Professional boxers do not wear head gear, but claimant uses it and mouth guards while training (2/26 T: 14-17, 63-64, 75).

Dr. Neal Goldberg testified on claimant's behalf after the court accepted him as an expert in the field of plastic and reconstructive surgery. Dr. Goldberg testified to his credentials. He is board-certified, licensed in New York State since 2002, has extensive experience treating patients who sustained face trauma, and he has treated thousands of patients in the emergency room with face lacerations. This was his first time testifying as an expert witness (2/26 T: 83-87; Exh. 13 [Goldberg CV]).

Before examining claimant, Dr. Goldberg reviewed his medical records and photographs from the correctional facility and from the Medical Center (2/26 T: 89). The records established that claimant was transferred on an emergency basis to the Medical Center when the prison infirmary staff could not stop the bleeding from extensive lacerations in two different areas. Claimant's initial intake records (see Exh. 9) show he was evaluated by a trauma team immediately because there was a "high probability" of "life threatening deterioration in [his] condition." They were worried he might bleed to death. The bleeding was stopped and he received 91 sutures (2/26 T: 90-92).

Dr. Goldberg took an oral history from claimant at his physical examination. The history was consistent with the medical records and with the doctor's examination. The scar on claimant's back is about 50 centimeters long, runs the entire width of the back, is about a centimeter wide for its entire length, and raised more on the right side. The facial scar is "spread and depressed," is about 20 centimeters long, and thickened in hair-bearing areas resulting in hair loss to his beard and on his scalp. The doctor found areas of hypersensitivity and numbness along the scar due to nerve damage and possible neuroma. Claimant experiences pain and fear of pain, which can make him pull away so as not to be touched. He did not find evidence of "trigeminal neuralgia." Claimant has full use of his face. Both scars are very "noticeable" (2/26 T: 93-97).

There was evidence of "subcutaneous" (under the skin) nerve damage. Dr. Goldberg explained that, "rather than with an injury to a -- a single dominant nerve trunk, where you would have an area, a very specific area that might be entirely numb, this is more - at least to my exam, more of a result of many small terminal subcutaneous sensory branches being injured under the skin, and the depth of this -- the reported depth of this laceration corroborates that" (id. at 94-95).

Dr. Goldberg did not see the damage during his physical examination of claimant (id. at 101-102).

He is not an expert in the diagnosis and treatment of TMJ injuries but he noticed "obvious visible and audible dysfunction at the TMJ joint," recommending evaluation by an expert. When claimant opened and closed his mouth the doctor heard "clicking" and he could see "the condylar head [was . . .] not rotating smoothly within the articular surface" (id. at 96-97, 101-102).

Based on his review of the medical records and his physical examination of claimant, Dr. Goldberg opined, to a reasonable degree of medical certainty, that claimant has " mature scars to each the face and back with areas of hypoesthesia and dysesthesia surrounding the scar on the face that [are] causing him difficulty," which is permanent. His condition is unlikely to change, and there is nothing that can be done medically to improve the nerve damage (id. at 98-99). The assault was the producing cause of claimant's injuries (id. at 99).

Dr. Andrew S. Kaplan testified on claimant's behalf. Dr. Kaplan has been licensed to practice dentistry in New York State since 1980. He testified that in his practice he specializes in Temporomandibular Joint Disorder (TMJ) and Orofacial Pain, on which he has lectured and published a textbook. He was also director of a clinic for these disorders at Mount Sinai Hospital for 15 years (2/26 T: 106-110; Exh. 12 [Kaplan CV]). The court accepted him as an expert in the areas of general dentistry and TMJ disorders (id. at 111).

Dr. Kaplan reviewed claimant's medical records (Exhs. 9-10), photographs of his injuries (Exhs. 1-5) and Dr. Goldberg's report. He also physically examined claimant on November 27, 2018, and had panoramic X-rays taken (2/26 T: 113-114, 131). Dr. Kaplan explained what he found noteworthy in the records: claimant was punched and kicked in the head, neck and body, and in the area of the knife wound on his face and going under his ear; he was cut through his right cheek, his ear and down his neck; the lacerations were deep; and the same records contain such complaints after the assault, e.g., lockjaw, clicking, difficulty opening his mouth and chewing (id. at 114-119, 126-127, 138-140, 153).

Dr. Kaplan diagnosed claimant as suffering from neuropathic pain on the right side of his face from severed nerve endings, which is permanent and irreversible. The doctor also diagnosed synovitis (inflammation) of the right TMJ and myofascial pain syndrome, which he testified might improve with treatment but his prognosis was guarded. Claimant is subject to intermittent dislocations on the right side of his jaw and open jaw lock, which could increase in frequency with age and require surgery (2/26 T: 140-143). In Dr. Kaplan's opinion, to a reasonable degree of dental and medical certainty, the assault at Sing Sing was the competent producing cause of claimant's TMJ and other injuries. The doctor ruled out claimant's Golden Glove and amateur boxing as causing the TMJ disorder because claimant was required to wear protective head gear that also covered his jaw, and claimant's ambulatory health records prior to the assault did not contain any complaints of TMJ-related symptoms (id. at 144, 150, 153). If claimant continues his boxing career, he could experience repeated trauma to the area and could hyperextend the joint, resulting in dislocation of the joint (id. at 151-152).

Claimant's exhibits show, inter alia, the following facts:

Color copies of photographs (Exhs. 2-4) show claimant in the Sing Sing infirmary with: a red laceration running across his back from below his right shoulder to his left mid-section and dipping down in the middle of the back; blood covering his face and body, and on the floor.

The Sing Sing Inmate Injury Report (Exh. 7) describes the length of claimant's face laceration as six inches and his back laceration as 22 inches.

Records from the Medical Center (Exh. 9) state that "[p]rior to discharge, while seated, patient felt lightheaded and had to lay down."

Claimant's medical records from the Department of Corrections and Community Supervision ("DOCCS") (Exh. 10) show that: on requesting an ambulance and emergency triage, the Sing Sing infirmary staff described the emergency as: "30 YR OLD MALE SUSTAINED MULTIPLE DEEP LACERATIONS TO SCALP, BACK, RIGHT EAR/SCALP LINE, ALL EFFORTS TO CONTROL ACTIVE BLEEDING, UNABLE TO SUTURE" (Exh. 10 at 8); claimant's lacerations required 91 sutures (id.); after the assault claimant experienced difficulty opening his mouth and chewing, numbness and pain in his face (id. at 63).

Dr. James King testified on defendant's behalf. Dr. King has been licensed to practice dentistry in New York State since 1985. He is director of dentistry and chief of oral and maxillofacial surgery at Harlem Hospital Center, and he has experience diagnosing and treating facial lacerations and TMJ injuries like claimant's. He was accepted by the court as an expert in the areas of oral and maxillofacial surgery (2/27 T: 170-172; Exh. A [CV]).

Dr. King physically examined claimant on January 14, 2019, and reviewed the following records: the reports by Drs. Goldberg and Kaplan; claimant's medical records from the Medical Center and DOCCS; claimant's deposition; and the bills of particulars (id. at 173).

Dr. King did not contest that claimant's facial laceration and scarring have caused sensory nerve damage, which is permanent, and claimant has a TMJ disorder. Dr. King gave a guarded prognosis that claimant's TMJ disorder could improve somewhat with treatment. He also mentioned that claimant could avoid aggravating the TMJ disorder by not eating certain foods, not opening his mouth wide and not playing contact sports. (2/27 T: 174-178, 180, 186-187). On examining claimant, he observed a "malocclusion," or inconsistent bite. Malocclusions or traumas from punching and kicking are common things that can lead to TMJ disorder. Claimant did not display signs of hypermobility and at maximum opening, claimant's jaw did not lock, indicating claimant did not have open lock jaw (id. at 187-190).

Dr. King opined, to a reasonable degree of medical certainty, that: claimant's facial nerve damage was caused by the laceration; and claimant's boxing career "possibly" could have added to the TMJ disorder, but there was no evidence to confirm it. Claimant's medical records from his ten years in prison before the assault did not contain any complaints of jaw pain or TMJ symptoms. In his experience, a patient's exposure to repeated facial traumas can lead to TMJ over a period of time, but a single punch or kick can also be the cause (id. at 180-184, 190, 196-198).

Dr. Rene Elkin testified on defendant's behalf. Dr. Elkin has been board-certified in neurology since 1994. She is chief of neurology at Bronxcare Health System, has treated a range of neurological diseases, and has testified as an expert many times. The court accepted her as an expert in the area of neurology (2/27 T: 211-213). Dr. Elkin is not an expert in TMJ disorders.

Dr. Elkin examined claimant one day after Dr. King's examination. Based on her examination and review of the medical records, she does not believe that claimant's headaches coming from the right side of his jaw were being caused by a TMJ disorder, although she acknowledged TMJ disorders can cause headaches. In addition, she could not conclude what was causing claimant's headaches due to his "very long history of headaches" (id. at 224), and she did not find inflammation in his TMJ. Dr. Elkin conceded that before the 2012 assault, the last time claimant had a headache was in 2004, and her report noted a finding of "objective inflammation" in claimant's TMJ (id. at 224, 229, 237).

Dr. Elkin diagnosed claimant with "subjective sensory loss" in the area of the scar on his face. She concluded that claimant demonstrated no objective loss of sensation or nerve damage, but she acknowledged that claimant had no involuntary reaction to being pricked with a sharp object in the area of the facial scar. She maintained there is no way to measure sensation objectively in neurological practice (id. at 223-224, 240-241).

"[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]).

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] [citation omitted]).

Claimant did not plead and is not seeking an award of economic damages. The evidence he presented at trial, and his written post-trial summation concerned only non-economic damages. The court notes that claimant, Dr. Goldberg and Dr. Kaplan provided generally sincere and forthright testimony.(4) Claimant proved, by a preponderance of the evidence, that the assault was a substantial factor in causing the deep lacerations to his face, neck, ear and back, resulting in permanent scars and sensory nerve damage along the facial scar. Defendant did not dispute these injuries at trial or post-trial in a written closing summation.

Both scars are noticeable and disfiguring. The facial scar is six inches long, runs across claimant's right cheek and ear and down his neck. The scar also prevents hair growth in hair-bearing areas of claimant's face, causing hair-less patches accentuated by the hair growth around them. The back scar is 22 inches long and will be visible whenever claimant is shirtless. Dr. Goldberg, the only plastic surgeon to testify, concluded that claimant's scars are permanent and cannot be surgically removed, which defendant does not contest. Dr. Goldberg's opinion - that claimant will permanently suffer with hypersensitivity and numbness along his facial scar - is consistent with claimant's testimony, the medical records showing claimant began experiencing the same symptoms shortly after the assault, and with the expert testimony of both claimant's dental expert Dr. Kaplan and defendant's expert Dr. King, a dentist.(5)

The court also credits claimant's testimony that he experienced significant pain and mental suffering because of the assault and resulting injuries, and he continues to experience pain and mental suffering. Claimant's pain level was extremely high, a 10 out of 10 according to his testimony, which is not surprising, and it continued for a significant period of time. He testified the assault happened at about noon. Claimant testified he was in the Infirmary for about 40 minutes before an ambulance arrived. The Medical Center records show there was a trauma alert and claimant was awaiting triage at about 1:46 p.m. (Exh. 9 at pgs. 1 and 10). Claimant then received 91 sutures. The only testimony about pain medication was provided by claimant, who stated he did not get any until the suturing began, and it was not enough to stop him from feeling the suturing. He also testified that nothing he was subsequently given at Sing Sing has helped with the pain remaining in his face.

Claimant testified about his fear of dying during and after the assault. His assailants said they were going to kill him, putting him in fear for his life, a fear that increased as the attack continued and nobody responded to his calls for help. For a significant period after the assault, claimant feared bleeding to death, which the records show was a very real possibility; claimant was bleeding profusely and growing weak, the prison infirmary personnel could not stop the bleeding. The emergency room staff concluded there was a "high probability" that claimant's condition was "life threatening." Claimant testified to additional mental suffering from people staring at his face, paranoia about anyone going behind him or coming near his face, nightmares about being stabbed, and waking up with dream-reality confusion. This testimony is consistent with what claimant reported to the doctors who examined him.

The issue of damages from claimant's TMJ disorder is more problematic. Both sides called dentists specializing in TMJ. Both confirmed TMJ disorder is present, both agreed that there are measures that can be taken but that the prognosis for these measures is guarded. The major divergence of opinion between the two experts was causation. Claimant's expert, Dr. Kaplan, opined that the attack caused the TMJ, while the defense expert, Dr. King, was not certain. The State argues that claimant's TMJ disorder is a pre-existing condition due to his amateur boxing. Dr. King's testimony gives this argument some support, if only to show claimant's symptoms manifested as a result of the assault. Dr. King testified that a patient's exposure to repeated facial traumas can lead to TMJ over a period of time, but a single punch or kick can also be the cause. It is possible that claimant sustained some trauma to his face even if he did, by law, wear protective headgear during his amateur fights and he had never had a pro fight before being incarcerated. However, it does not appear that claimant's ambulatory health records prior to the attack show that claimant experienced symptoms related to a TMJ disorder.

The definitive opinion provided by claimant's expert, compared to the uncertainty of defendant's expert, tips the scales in favor of causation, which the court finds claimant established with a preponderance of the credible evidence. Claimant's headaches, jaw pain, difficulty chewing, clicking sounds and intermittent locking of the jaw are attributed to the assault. Claimant's decision to continue pursuing his boxing career will reduce any potential amount of damages for the injury going forward. Claimant is now boxing as a professional without headgear and there is no dispute that doing so will likely worsen his TMJ disorder. There was agreement by the two dental experts that claimant could possibly improve his condition with certain treatments and by avoiding contact sports, none of which will occur if claimant keeps getting hit in the face for a living. The court is sympathetic to claimant's situation. He was apparently a talented boxer before going to prison and continued to train in prison for 13 years. His goal is to win a belt and giving that up is a hard choice. However, he cannot have it both ways.

Based on all the foregoing, the court finds that claimant suffered damages in the total amount of $655,000.00(6) , comprised of: $50,000.00 for past pain and suffering from the TMJ disorder and $175,000 for past pain and suffering from the lacerations, scars and nerve damage to claimant's face and back, with $50,000 of that amount allocated to trauma from the objectively reasonable fear of impending death; $30,000 for future pain and suffering from the TMJ disorder(7) and $400,000 for future pain and suffering from the lacerations, scars and nerve damage to claimant's face and back. The court finds that sum constitutes fair and reasonable compensation for claimant's injuries.

Award for Past Damages

Past Pain and Suffering $225,000.00

Award for Future Damages

Future pain and suffering $430,000.00

The court awards Mr. Aughtry the amount of $655,000.00, together with interest from April 25, 2018, 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).

Since the amount of future damages exceeds $250,000.00, a structured judgment is required pursuant to CPLR 5041(e). The Clerk of the Court is directed to stay entry of judgment in accordance with this decision until a hearing is held pursuant to CPLR article 50-B. The court encourages the parties to agree upon the counsel fee calculation and the discount rate to be applied and to formulate their own structured settlement (see CPLR 5041 [f]). In the event the parties fail to reach agreement, each party shall submit a proposed order directing judgment in writing, conforming to the requirements of CPLR article 50-B, within 120 days of the filing date of this decision. A hearing will thereafter be scheduled as soon as practicable.

All motions upon which the court reserved decision at trial are hereby denied.

May 22, 2019

White Plains, New York

STEPHEN J. MIGNANO

Judge of the Court of Claims


1. Judge Scuccimarra retired from the Court of Claims on December 31, 2018.

2. Claimant was paroled on June 14, 2018.

3. "[date] T: [#s]" refers to relevant page(s) of the transcript for the trial on a specific date.

4. Except for claimant's testimony that he stood up then fainted in the emergency room and fell on the floor. The medical records note that while sitting he became lightheaded then lay down. Although claimant exaggerated in this instance, his testimony was otherwise consistent with recorded observations.

5. The court did not find the expert testimony of defendant's witness, Dr. Elkin, particularly illuminating or persuasive. She testified that she did not find "objective inflammation" in claimant's TMJ when she stated in her report that she had, and her testimony that claimant had a "long history of headaches" prior to the assault was refuted by claimant's prison records; the records showed that claimant had not reported a headache since 2004.

6. The court is aware the award in this decision exceeds the amount demanded in the original ad damnum clause of the claim (which was filed pro se by claimant before representation). However, it appears that this court has the authority to sua sponte conform the pleadings to the proof. The Court of Appeal in Loomis v Civetta Corinno Constr. Corp. (54 NY2d 18 [1981]), held clearly that a motion made by a plaintiff to increase the amount requested in the ad damnum clause of the complaint, whether made before or after the verdict, may be granted in the absence of prejudice to the defendant. Based on this ruling, it is clear that conforming the pleadings to the proof may be done at anytime, including post-judgment. In the instant case, there does not appear to be any prejudice to the State nor any lack of notice since the Note of Issue filed by claimant's counsel indicated that the damages sought were much higher than the original ad damnum, with no objection from the State.

While there has been no motion by claimant for such relief at this time, the Second Department indicated in Cave v Kollar (2 AD3d 386 [2003]), that pursuant to CPLR 3025(c), pleadings may be conformed to the proof absent a motion where there is no prejudice. "This court may, sua sponte, relieve the defendants of their failure to amend their pleading by deeming the answer amended to conform to the evidence presented on the motion and cross-motion for summary judgment in the absence of a showing of prejudice to the plaintiff." While that decision was by an appellate court in the context of motions for summary judgment, it appears that the Second Department has allowed trial courts to grant such relief sua sponte (see Thailer v LaRocca, 174 AD2d 731, 732 [2d Dept 1991]). Summary judgment is the equivalent of a trial, and limiting this discretion to appellate courts would not serve judicial economy. In this case, the court finds it an appropriate use of discretion.

7. Which the court has reduced due to claimant's stated plan to continue boxing, thus assuming at least partial responsibility for his continued problem with this injury.