New York State Court of Claims

New York State Court of Claims

LAVERY v. THE STATE OF NEW YORK, #2004-016-016 , Claim No. 103771


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Bornstein & Emanuel, Esqs.By: Anthony J. Emanuel, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Alan Berkowitz, Esq., AAG and Susan Connolly, Esq., AAG
Third-party defendant's attorney:

Signature date:
March 30, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the trial of the damages portion of the claim of James Lavery, who was injured by a post that was bent and partially protruding across a sidewalk between the villages of Copiague and Amityville in Suffolk County. The defendant State of New York had been found 60% liable for Mr. Lavery's accident.

On the evening of May 24, 1999, Lavery and his wife Karen were walking a few blocks to the local grocery store along the sidewalk with Montauk Highway and a guide rail bolted to vertical metal posts on their right. Then, according to c
laimant, who was closest to the guide rail:
And we were walking, and all of a sudden, I was near the edge of the sidewalk, and we were walking and all of a sudden out of the blue, I felt this very painful sharp jag in my leg - - I mean, my shin. And I walked about another - - hopped about three or four more feet, and . . . I sat down . . . [and said ] my leg's killing me . . . There was a lot of blood coming down the leg . . .
Until claimant saw Dr. Eli Schessel in November of 2003, the evidence relating to his injury or injuries is as follows:
1) Claimant had walked slowly into a metal post.
2) He was bleeding and said he was in a lot of pain.
3) An ambulance was called and Lavery was taken to Brunswick General Hospital in Amityville. The injury was described as a contusion or "contusion abrasion" on the right shin (cl exh 1, the first and third unnumbered pages). The shin wound was dressed, cleaned and covered with gauze and a band-aid or bandage; Lavery was given a tetanus shot (id., fourth unnumbered page). He received no stitches. Claimant's pain was described as moderate (id., first unnumbered page). Claimant was x-rayed, and no fracture or "other bony abnormality" was found. The radiologist added that "the soft tissues are unremarkable" (id., last page). Released from Brunswick Hospital later that night, claimant was provided with crutches, which he used for three or four days, a prescription for pain medication and some basic instructions for keeping the wound clean (id., fourth unnumbered page).
4) Lavery testified that he saw a Dr. Kurt four days after the accident and then had another appointment with him four weeks later. In addition to not having Kurt's full name or speciality, claimant supplied no records of these two consults. Claimant added that from about June through August of 1999, he went to the Suffolk County Department of Health Services for treatment on his leg three times. He did not describe the treatment, and again mentioned only the last name of a doctor, was unaware of her speciality and presented no records.
From August 1999 until November 2003, claimant did not see any health care provider, whether a physician or, for example, a physical therapist.
Then on November 17, 2003, claimant was examined by Dr. Schessel, a plastic surgeon, who testified at trial seven weeks later.
Dr. Schessel heard Lavery complain that the injured area throbbed when he walked. Schessel observed what he called a fullness of the right shin, which led to this exchange:
Q. Doctor, I'd ask you to look at [a photo, claimant's exhibit ] 3-C . . . When you talk about the fullness, is that the bump or lump area that you're referring to?

A. Yes . . . In my opinion, it's a protrusion of muscle . . . There's only [one] way it could occur. When he injured the leg and cut the skin - - the subcutaneous tissue, he cut the muscle.
By the time he saw Dr. Schessel, Mr. Lavery was 47 years old. Claimant was employed as a construction worker, a carpenter by trade engaged in work that was physically demanding. It involved climbing ladders and sometimes, although claimant was a little vague on this, lifting pieces of sheetrock, which weighed 70 pounds. The photograph that the doctor was shown, and the other 3 photographs that comprise claimant's exhibits 3A through 3D were taken a few weeks before trial. As of his November 18, 2002 deposition, Lavery was apparently using pain relief medication only sporadically, not having taken any for two months.

Proof here must be established by a fair preponderance of the evidence. For claimant to prevail on an issue, the evidence supporting it must, to the trier of fact, more nearly represent what took place than the evidence opposed to it. If the two sides are equally balanced, claimant has not met his burden and cannot prevail. (See
PJI §1:60). In view of the overall evidence, including over four years without medical care and without missing any work, Dr. Schessel's testimony is insufficiently persuasive, even though no other doctor took the stand to contradict his testimony (see PJI 1:90). Except for measuring the swelling of the leg of an individual with a physically taxing job more than four years after the subject incident, Schessel did not offer testimony that was objectively based.
Lavery was bed-ridden the first three or four days and needed crutches to go to the bathroom. However incompletely recalled, claimant underwent some sort of medical treatment with five appointments through August of 1999. It is within the reach of the credible evidence to conclude that he was in pain as a consequence of the accident at least through that time, if not through the end of 1999. As noted, since claimant lost no work, there is no claim for lost wages; nor are any medical expenses being sought.

On the stand, claimant testified that he used to run, bike and bowl, but no longer did so because these activities put strain on his leg and caused discomfort. In his November 18, 2002 deposition, Lavery's list of activities was jogging, weight-lifting and bowling, and there was this awkwardly circumspect language:
Q. Is there anything you cannot do as well, something you still do, but you cannot do as well because of the accident?

A. No.
Inasmuch as no impact was found on claimant attributable to the subject injury that extended beyond 1999 (other than a scar), any loss of participation in activities will be limited to that period.
For past pain and suffering (including the scar), I conclude the amount of damages to be
$20,000. The one result of his accident that, in view of the credible evidence, was not of limited duration is the scar on claimant's right shin. Lavery has another scar, albeit a less prominent one, a few inches below on the same leg. The scar caused by the May 24, 1999 accident is permanent in nature and constitutes claimant's only item of future damages; it shall be valued at $5,000.[1]
Claimant thus has been damaged in the amount of
$25,000 - - for past and future pain and suffering, of which the defendant is responsible for 60%. Accordingly, the Clerk of the Court is directed to enter judgment for James P. Lavery, Jr., in the amount of $15,000, with interest from August 26, 2003, the date of the Decision on liability in this matter.
To the extent that claimant has paid a filing fee, it may be recovered pursuant to subdivision two of §11-a of the Court of Claims Act.


March 30, 2004
New York, New York

Judge of the Court of Claims

[1] Born September 26, 1956, the parties agreed that Lavery's life expectancy was 30 years, which matches the figure set out in the actuarial tables (PJI , Vol 1B, App A, Table 2).