New York State Court of Claims

New York State Court of Claims

TSAROPOYLOS v. THE STATE OF NEW YORK, #2003-016-021, Claim No. 93902


Synopsis



Case Information

UID:
2003-016-021
Claimant(s):
DIMITRIOS TSAROPOYLOS and SOTIROULA TSAROPOYLOS
Claimant short name:
TSAROPOYLOS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93902
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
DiJoseph & Portegello, P.C.
By: Arnold DiJoseph, Esq. and Laurel L. Kallen, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Gail Pierce-Siponen, Esq.
Third-party defendant's attorney:

Signature date:
March 10, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is the decision following the trial on damages for the injury suffered by Dimitrios Tsaropoylos while working aboard a ship of the State University's Maritime Academy, which is located in the Bronx on Long Island Sound. The defendant State of New York had been found 35% liable in the Decision dated May 9, 2001 and filed May 21, 2001. On December 27, 1993, claimant[1]
had his right index finger crushed when a hoist and pulley slid off an overhead beam releasing a 400-pound pipe. Mr. Tsaropoylos at the time was employed by the B & A Marine Company as a marine mechanic, repairing machinery on ships.
***
When injured, claimant was taken by ambulance to Jacoby Hospital in the Bronx and then to Montefiore Hospital for its speciality in reconstructive surgery. Dr. Frederick Valauri, a plastic and reconstructive surgeon with a concentration on hand surgery, was, besides Mr. Tsaropoylos, the only other witness called by either party. Put on the stand by claimant, Dr. Valauri stated that he was on call for the microsurgery replantation service at Montefiore on the day claimant was injured.

Dr. Valauri recalled that Tsaropoylos had fractures of the two last joints of the right index finger. The tissues in these joints "appeared to be badly crushed" and had no circulation.
In an exploratory operation, the finger was dissected. Valauri explained that the "operative findings were that ... the nerves were torn and shredded, as were the tendons, and that the fingertip was attached by a shred of tendon alone."
The nature and extent of the injury meant that it was not, as Dr. Valauri put it, a "salvageable situation."
The doctor described what happened next as the completion of the amputation: "By that, I mean the tendon remnant...was severed, and then the remaining portion of the finger was trimmed and the skin closed after cutting..."
Dr. Valauri observed that this injury was painful, involving as it did a "crushing and tearing injury to the nerves..." Tsaropoylos returned to Valauri for a total of five visits. He healed relatively well - - there was no infection, but he did develop a neuroma, which is a scar at the end of a cut nerve. The neuroma, according to the doctor, was somewhat painful and there was stiffness and swelling of the index finger.
Claimant had physical therapy, which included treating the injured digit by immersing it in warm wax or paraffin. Dr. Valauri noted that Tsaropoylos also suffered from cold intolerance. On April 4, 1995, a second surgery
was performed, by a Dr. H. Burns, to excise the neuroma that the Report of Operation described as "large" (cl exh 2, third page).
Dr. Valauri did not see Tsaropoylos again until the summer of 2000. The medical chart
indicated that he continued to have problems with cold intolerance, felt pain when lifting heavy objects and, in fact, would drop objects. Claimant's right hand grip was significantly impaired. It was measured as only 50 pounds compared to 110 pounds in his non-dominant left hand, which would typically be 15% weaker than the dominant hand. Valauri said that nerve pain was the most likely explanation for claimant's weakened grip. This condition, in the doctor's opinion, will not improve, and would, for that matter, not improve with additional surgical intervention.
Turning to the claimant's testimony. To this trier of fact, Mr. Tsaropoylos was exceptionally credible on the stand; he was a straightforward, no-nonsense witness, and not given to exaggeration.

The gloves Tsaropoylos was wearing when the 400-pond pipe hit him offered no protection against that kind of force.
He felt "tremendous" pain. "[T]he finger was just hanging...everything was smashed." In addition to Drs. Valauri and Burns, Tsaropoylos was seen by two other surgeons, a Dr. Grad three or four times early on, and a Dr. Stratakakas, whom he saw about once a month from April 1994 to September 1995.
Immediately following his first surgery, claimant went to physical therapy two or three times a week for the purpose of softening the stitches. This lasted only three weeks. Claimant then went to a new physical therapist, which was where the paraffin
treatment began. He was also given a spring device to exercise with. Tsaropoylos recalled he had commenced treatment with this physical therapist in early 1994 and continued until April of 1995. There was no further physical therapy thereafter. What claimant did do with regularity and continues to do is take pain medication.
Tsaropoylos has been in pain since the accident, although he described the pain as less following his second surgery in April 1995. The finger hurts when he touches something.
"[A] lot of times when I have to touch something like steel or something like that...the pain starts again." He will often imagine that he still has a complete right index finger, will try to use it and suffer pain - - a condition Dr. Valauri said is not atypical in such cases.
When Tsaropoylos feels pain, he described it as needle-like or stabbing. His finger is sensitive to cold. Claimant has difficulty using a knife and fork, lamenting that he eats like a five-year old. He has to be very careful with his hands when playing with his young son, and he cannot play ball with his children as he once was able to do. When he swims, he feels pain when his index finger hits the water; and he can no longer participate in hunting. Claimant believes that because of his injury, he does not sleep as well.

Born April 29, 1951, Mr. Tsaropoylos was 51 years of age at the time of trial. The actuarial tables - - and nothing in the record suggests they should be varied from - - indicate that at such time he had a life expectancy of
26 years.[2] In view of the above facts, I find that his past pain and suffering to be $225,000 and his future pain and suffering to amount to $400,000.
***
Claimant testified, without challenge, that he was unable to work at all through the 1995 calendar year and in 1996, was only able to secure part-time work. His tax returns show the following income due to his employment:

Calendar Year 1991: $40,710

1992: 31,353 (includes $4,013 in unemployment insurance)

1993: 35,722 (includes $3,000 in unemployment insurance)

1996: 13,304
1997: 54,584 (includes $1,125 in unemployment insurance)

(Cl exhs 1 through 1D).
This is the basic information; we just have Mr. Tsaropoylos' salary history to work with. The average of 1991 through 1993 is $35,928 and, obviously, the median and last of the three years is $35,722. It is not unreasonable to use that $35, 722 as the figure for 1994, and then build from it to the actual 1997 earnings of $54,584 in two equal steps.
Inserting the two equal steps between the $35,722 earned in 1994 and the $54,584 in 1997 results in $42,009 for 1995 and $48,297 for 1996. In my view, the record does not support the possible contention that the $54,584 figure is unrepresentatively high.
December 27, 1993 was a Monday; Friday was December 31. Assuming claimant would have worked another three days to close out the 1993 year, I conclude his lost wages for the three days was $393.[3]

In sum, his lost wages amount to:


Calendar Year 1993: $ 393
1994: 35,722
1995: 42,009.

1996:
34,993 ($48,297 less his $13,304 parttime earnings)
TOTAL $113,117

***
As to the loss of services claim by his wife Sotiroula, Mrs. Tsaropoylos did not take the stand, and no amount will be awarded therefor. The actual amounts expended, whether reimbursed or not (and this is unclear with regard to the pain medication) for surgical, medical and pharmaceutical were referenced generally without dollar figures, and no award will be made for them.
***
In sum, the claimants' damages are as follows:

Dimitrios Tsaropoylos
Past Pain & Suffering $225,000
Future pain & Suffering 400,000


Past Lost Earnings 113,117

Future Lost Earnings 0


Medical, including drugs
0

Total: $738,117



Sotiroula Tsaropoylos
Loss of services 0

Defendant's share of the liability was thirty-five (35)%, and Dimitrios Tsaropoylos is therefore awarded $258,341, with interest to accrue on such amount from May 9, 2001, the date the liability decision was signed. All motions not heretofore ruled upon are deemed to be denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.


March 10, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1] References in the singular to "claimant" or Tsaropoylos refer to Mr. Tsaropoylos. This spelling of claimant's surname reflects his spelling of it on the witness stand in the damages phase (tr. 3).
[2] PJI, App A, Table 2. Born April 29, 1951, Mr. Tsaropoylos was 51 years old at the time of trial. Table 2 generates a life expectancy of 26.6 years for someone in the age 51-to-52 range at the beginning of such interval: the damages trial took place about a half year after claimant's fifty-first birthday on April 29, 2002.
[3] The $393 is his 1993 earnings, without the unemployment insurance, divided by 50 weeks, i.e., [$32,722 ÷ 50] times 3/5 of a week.