New York State Court of Claims

New York State Court of Claims

HOFFMAN v. NEW YORK STATE THRUWAY AUTHORITY, #2004-018-300, Claim No. 104013


Claimant awarded damages of $422,000 as a result of an accident on the NYS Thruway when the vehicle Claimant was driving was struck by a truck owned by the NYS Thruway and operated by a NYS Thruway employee.

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:
PERLA & PERLA, LLPBy: Jeffrey Perla, Esquire
Defendant's attorney:
Attorney General of the State of New York
By: Roger B. Williams, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant[1] was injured on June 4, 1999, in an automobile accident on the New York State Thruway. The State was found liable for the accident, as decided by the Court on a summary judgment motion.[2] This decision addresses damages only.

In 1997, claimant retired, after 38 years, from the Erie County Highway Department. To supplement his pension, claimant worked part-time at a Target store, as a stock clerk, beginning in November 1998. In April 1999, claimant took another part-time job with West Herr Ford, delivering vehicles. He was completing a job assignment for West Herr Ford, returning to Buffalo from Mohawk Valley, when he was injured.

The car claimant was driving, when injured, was struck by a vehicle owned by the New York State Thruway Authority and driven by an employee. Claimant's vehicle hit the median, rolled over a couple of times, and after the vehicle came to rest, he was able to extricate himself from the car. He recalls being shaky and disoriented, his hands were cut and bloody, and his left arm and shoulder hurt. He was transported to Crouse Hospital in Syracuse by ambulance where he had x-rays, was bandaged and released. Mrs. Hoffman and their son went to the hospital and drove claimant home to Buffalo.

On June 7, 1999, claimant went to his family doctor complaining of pain in his left shoulder, elbow and neck area. He was referred to Andrew Matteliano, M.D., a specialist in physical medicine and rehabilitation. Dr. Matteliano diagnosed ulnar nerve damage in claimant's left elbow area as well as injury to his left arm and shoulder. He prescribed physical therapy and a muscle relaxant. Claimant was unable to return to either of his jobs.

Claimant continued treating with Dr. Matteliano throughout 1999, regularly complaining of left shoulder pain, limited range of motion, numbness in his left small finger, and neck pain. Claimant could not sleep well because of the pain. He was sent for an MRI and continued physical therapy.

In November 1999, Dr. Matteliano released claimant to return to work at West Herr Ford, transporting vehicles. He prescribed Ambien to help him sleep. At his December 16, 1999 visit to Dr. Matteliano, claimant complained of pain in his neck and left shoulder as well as numbness down his left arm when driving. Dr. Matteliano prescribed Naprosyn and continued the Ambien. Claimant's symptoms continued, and in January 2000 he was referred to Dr. A. Marc Tetro, an orthopedic surgeon.[3] Dr. Tetro noted the claimant's continuing complaints and ordered a new MRI with a higher intensity to rule out the presence of a rotator cuff tear. Based upon claimant's complaints, range of motion, x-rays and electro-diagnostic studies, Dr. Tetro diagnosed a rotator cuff injury and ulnar nerve damage. To try to alleviate claimant's symptoms, Dr. Tetro injected claimant's shoulder with a corticosteroid. He also requested approval from the Workers' Compensation Board for surgery, a left ulnar nerve neurolysis. Claimant continued physical therapy and did exercises for his shoulder at home.

On March 28, 2000, claimant saw his family doctor for his annual physical, at which time he complained of swelling in his groin area. He was referred to Dr. Ralabate, a surgeon, who performed an excisional biopsy to rule out lymphoma. Claimant testified that the possible cancer diagnosis scared him, and it was months later that he learned there was no malignancy. His family doctor attributed the reactive lymphoadenopathy to claimant's automobile accident, specifically caused by his seatbelt.

In June 2000, claimant was again seen by Dr. Tetro who noted that the continuing physical therapy offered no improvement in claimant's condition. The corticosteroid injection gave him temporary, short term relief. The high intensity MRI showed a partial rotator cuff tear. The doctor made another request for Workers' Compensation authorization for ulnar nerve surgery, and based upon the MRI findings, he also requested authorization for arthroscopic shoulder surgery. These requests were repeated in August 2000. The authorization was given and claimant underwent shoulder surgery on November 20, 2000. After the surgery claimant was, again, totally disabled and ended his employment with West Herr Ford. He also continued his medication and physical therapy three times per week. Claimant continued to see Dr. Matteliano monthly.

After the November surgery, although claimant's ulnar nerve symptoms improved, he still suffered significant shoulder discomfort. Dr. Tetro sent claimant to a different physical therapist with a practice specializing in shoulder injuries in March 2001. There was some improvement in claimant's shoulder through April, at which time he reached a plateau despite the prior surgery. Dr. Tetro suspected claimant was still symptomatic due to the partial rotator cuff tear which might require open surgical repair; however, Dr. Tetro did not pursue additional surgery at that time. Claimant returned to work at West Herr Ford in June 2001. Claimant continued to have pain in his shoulder, numbness in his little finger and problems sleeping. From July 2001 to November 2001, Workers' Compensation discontinued claimant's physical therapy authorizations.

By November 2001, Dr. Tetro noted that claimant's symptoms were worsening. He spoke with claimant about surgical repair of his rotator cuff which often results in improvement. Dr. Tetro requested authorization from the Workers' Compensation Board for the additional shoulder surgery to repair the rotator cuff. Claimant stopped working at West Herr Ford because driving caused him pain.

Claimant had the second surgery in February 2002, which reattached the tendon to the bone. Again, physical therapy was prescribed which included aquatic therapy. Claimant's condition continued to improve through August, at which point, it was Dr. Tetro's opinion, no further significant improvements would be made. In October 2002, Dr. Tetro referred claimant to Dr. Peer for pain management. After a couple of injections of Bupivacaine with Depo-Medrol, Dr. Peer felt there was nothing more he could do to assist claimant with the persistent pain. By July 2003, Dr. Tetro concluded claimant's shoulder had reached maximum recovery and improvement, and claimant will likely continue to suffer ongoing pain and discomfort. Dr. Tetro also opined that claimant will need surgery on his ulnar nerve, and will continue to have limited strength and range of motion in his left shoulder, and will be unable to return to work. He will require continuing medications. All of this is causally related to the accident, as claimant had no prior health problems.

Claimant testified that his daily activities are now restricted. Before the accident he performed virtually all of the household repairs and maintenance, as well as vehicle repair and maintenance. Prior to the accident, claimant enjoyed boating with his wife and owned a boat. He can no longer enjoy boating and has his boat for sale. His ability to play with his grandchildren is now also limited. He now takes Celexa to help with depression that has resulted from his pain and limitations.

Mrs. Hoffman said her husband is frustrated with his limitations. He was a workaholic who kept busy. Their relationship has suffered as a result of the pain and frustration. She spends more time away from the home and their intimate relations have also suffered significantly.

Claimant bears the burden to prove the damages sustained. It is intended that an award of damages should compensate the party for actual sustained losses as well as items of damage that will be incurred in the future (PJI3d 2:277 [2004]).

The evidence establishes that claimant has received $54,476.95[4] of which $50,000 was paid by Workers' Compensation in lieu of no-fault benefits and is, therefore, unrecoverable in this action. Claimant is entitled to recover $4,476.95 in past medical and/or lost wages. The Court also finds that Workers' Compensation did not pay for lost wages from West Herr Ford Inc., after November 2001.

Before the accident, claimant was working approximately 15 hours per week at West Herr Ford. After the accident, although still employed, he was unable to work consistently or for as many hours. In 2001, claimant earned $6 per hour at West Herr Ford. If not for the accident, claimant would have earned $8,901 for the period from November 2001 until trial ($6 x 15 x 4.3 x 23 months). Claimant did earn $216[5] which must be deducted, leaving claimant's lost wages award from West Herr Ford, Inc., of $8,685.

For future medical expenses, the proof establishes claimant's need for surgery on his ulnar nerve along with follow-up care and the Court awards $8,000 for those expenses. He will also require medical monitoring which will cost about $40 per visit. The Court finds he should be seen four times per year. Based upon the PJI, claimant's life expectancy is 18 years. This results in an award for medical monitoring, during the course of claimant's life, of $2,880. Claimant also seeks an award for water therapy; however, the proof did not support such an allowance. Claimant will require continued medication for the pain and depression. The costs for these prescriptions are $232.27 per month, and when calculated for claimant's life expectancy (12 x 18 x $232.27) amounts to $50,170.32. Claimant's future medical award is $61,050.32.

In addition to future medical expenses, claimant may also recover for future loss of income (Keleher v Fox Ford of Victor, 267 AD2d 646, 648). Crediting claimant's testimony that he would have continued to work for both Target and West Herr Ford until age 70, he would have been employed another 7 years and 10 months as of the date of trial. The proof establishes that prior to the accident in 1999, claimant had worked six months at Target, averaging 21 hours per week and earning $2,614 ($6 per hour). Although claimant testified without any contradictory evidence that if he had remained employed at Target, he would be earning $7.50 per hour for 20 hours per week, the Court finds this increase speculative and awards lost wages at the rate of $6 per hour. This would calculate out to be $516 per month which for the balance of his working life would be $48,504 in lost wages. For two months prior to the accident, claimant was also employed by West Herr Ford, Inc., and earned $750 for 1999. After the accident, claimant continued to work for West Herr Ford, Inc., periodically, earning $6.00 per hour. Accepting claimant's testimony that if not for his injuries, he still would have been working at least 15 hours per week at West Herr Ford, Inc., earning at least $6.50 per hour until age 70, he would have earned $39,409.50 during the remainder of his work life. Therefore, the Court awards claimant $87,913.50 for future lost wages.

Claimant must also be compensated for his pain and suffering. From the testimony, claimant has clearly suffered chronic pain, discomfort, numbness, and difficulty sleeping since the accident. He has been unable to perform his normal activities and has had to undergo three surgeries. The evidence establishes that claimant will need another surgery, and for the rest of his life will have to live with some chronic pain which will likely get worse with time. He will also have permanent limitations of his range of motion. The Court awards claimant $75,000 for past pain and suffering and $150,000 for future pain and suffering.

Mrs. Hoffman also has a loss of consortium and services claim which the evidence supports. Thus, the Court awards her $15,000 for the past loss of consortium and $20,000 for the future.

Accordingly, in summary, claimants are awarded:

Past Damages:
Medical and lost wages $13,161.95
Pain and suffering $75,000.00
Loss of consortium $15,000.00
Total Past Damages: $103,161.95

Future Damages:
Medical expenses $61,050.32
Lost wages $87,913.50
Pain and suffering $150,000.00
Loss of consortium $ 20,000.00
Total Future Damages $318,963.82

Since the amount of future damages exceeds $250,000.00, a structured judgment is required (see CPLR 5041[e]). I direct that judgment be held in abeyance pending a hearing pursuant to CPLR article 50-B. The Court encourages the parties to agree upon an attorney's fee calculation and the discount rate to be applied to formulate a structured settlement of their own (see CPLR 5041[f]). In the event that the parties cannot reach such an agreement, each party will submit a proposed judgment in writing conforming to the requirements of CPLR article 50-B within 60 days of the service of this decision upon them by the Clerk of the Court. A hearing will thereafter be scheduled at the mutual convenience of the parties and the Court.

All motions made at trial and not heretofore ruled upon are now denied.

Claimants are entitled to recover the amount of any filing fee that has been paid pursuant to Court of Claims Act § 11-a(2).

April 1, 2004
Syracuse, New York

Judge of the Court of Claims

[1]Claimant will refer to Neil Hoffman unless otherwise specified. Sally Hoffman's claim is derivative in nature.
[2]Hoffman v State of New York and The New York State Thruway Authority, Ct Cl, Fitzpatrick, J., signed September 26, 2002, Cl. No. 104013, Motion No. M-65443, UID #2002-018-173.
[3]Dr. Tetro testified via videotaped deposition (Exhibits 6 and 7).
[4]Exhibit 3.
[5]See Exhibit B.