LOMBARDO v. THE STATE OF NEW YORK, #2004-032-503, Claim No. 101734
GIUSEPPE LOMBARDO and CARMELLA LOMBARDO, his wife,
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
JUDITH A. HARD
Zwiebel, Brody, Gold & Fairbanks, L.L.P.By: Alan S. Zwiebel, Esq.
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General,Of Counsel
March 31, 2004
See also (multicaptioned
On March 5, 1999, claimant Giuseppe
("claimant") was injured when he was involved in an automobile accident with a
tractor trailer on State Route 52 in the Town of Wawarsing, New York. In a
decision dated June 2, 2003, issued after a bifurcated trial on the issue of
liability, the Court found that both parties were responsible for the occurrence
of the accident and apportioned liability 70% for the claimant and 30% for the
defendant. The decision herein pertains solely to damages and awards the
claimant Giuseppe Lombardo, $141,132.00 for the pain, suffering and economic
damages he sustained as a result of the accident, and $6,000.00 is awarded to
claimant Carmella Lombardo for her derivative claim.
I. Claimant's Physical Injuries
Following the accident, claimant was transported to Ellenville Community
Hospital where after some initial tests, he was airlifted to Westchester County
Medical Center and admitted there the same day. Claimant was diagnosed with a
splenic laceration, multiple left rib fractures and a comminuted right posterior
(Exhibit 5/ Westchester County
Medical Center records; Court Exhibit 1, p 19). Claimant immediately underwent
surgery for splenic bleeding (Exhibit 5/ Westchester County Medical Center). Dr.
, an orthopedist, performed a
surgical operation on claimant's hip on March 11, 1999 at Westchester County
Medical Center (Court Exhibit 1, pp 7, 9).
Dr. Wellin testified that claimant had "a fracture of the right acetabulum,
which is the hip socket, such that the joint surface was completely disrupted.
And the surgery was designed to reconstruct the joint surface and stabilize it
with hardware...." (Court Exhibit 1, pp 8-9). On March 24, 1999, claimant was
transferred to St. Francis Hospital for physical and occupational rehabilitation
and was discharged from there on March 26, 1999. At the time of discharge he was
ambulatory with a walker (Exhibit 7/St. Francis Hospital).
that after the accident he had pain in his chest for one month and pain in his
stomach for five to six months. He continues to have constant pain in his right
leg. He feels electric shocks in his right foot. He must move around every two
minutes to alleviate his discomfort. Two to three times a week he gets up from
his bed in the middle of the night to sit in a chair (Tr, 96-99). He cannot
stand without support to alleviate the pressure on his leg. He is able to walk
but he needs to stop and rest intermittently (Tr, 108). Claimant has a scar on
his leg/hip from the surgery and a small scar above his left eye from the
Upon hearing about her husband's accident, claimant's wife Carmella Lombardo,
immediately went to Ellenville Community Hospital and flew with him to
Westchester Hospital. She visited him every day while he was hospitalized there
and at St. Francis Hospital in Poughkeepsie (Tr, 45). When her husband returned
home, he was bedridden.
For three months he required the use of a bedpan and she attended to his
. A visiting nurse came to their home
until May of 1999 (Tr, 60). Carmella Lombardo moved their bedroom downstairs.
She maintained that claimant walked with crutches for one to two months and then
used a walker for six to seven months (Tr, 48). He progressed to a cane, which
within the past year he no longer needs (Tr, 49-50). She testified that he can
only sleep through the night one to two times per week due to the pain in his
right leg (Tr, 50). Although he has been able to fly to Italy twice since the
accident, he had to be pushed through the airport in a wheelchair (Tr, 58-59,
100). He is able to drive his motor vehicle to visit his daughters who live in
Pennsylvania and Long Island, but now he must stop a few times along the way
Dr. David Wellin continued to treat claimant for three years after this
surgery. Initially, claimant did not report any pain from his injury or the
surgery. He attended physical therapy and progressed from a walker to a cane.
However, approximately three months after surgery, he complained of pain around
his right knee and ankle (Court Exhibit 1, p 25). This pain was preventing him
from attending physical therapy and doing other activities. At the time of the
accident, he had complained about ankle pain, but it was x-rayed and determined
not to be fractured (Exhibit 5)
. Dr. Wellin, therefore, treated it as an ankle sprain by applying an air cast.
When Dr. Wellin saw him on September 1, 1999, claimant was able to bear full
weight on the right leg, but he experienced significant pain and stated that his
foot and toes felt like they were asleep. Dr. Wellin testified that this type of
complaint is more typical of neurogenic
He examined claimant and found that the sciatic nerve was
In the fall of 1999, claimant was
sent for an electric diagnostic study to test the nerve. It showed that he had a
the sciatic nerve (Court Exhibit 1, pp 38-39; Exhibit 5/letter to Dr. Wellin
from T.V. Seshan, M.D.). Claimant's hip fractures were healing well; the hip
joint space was maintained; and the fractures remained aligned from the surgery
(Court Exhibit 1, pp 22, 23, 40). Claimant continued to see Dr. Wellin for
another seven visits but the pain down his right leg and foot continued. In
early 2001, the results of a second electric diagnostic study of the sciatic
nerve showed electrical improvement of his lumbosacral plexopathy (Court Exhibit
1, p 42). Despite this improvement, claimant continued to have pain. Dr. Wellin
testified that "there's no clear correlation between the progression
electrically and clinically. It is very possible to appear better on the tests,
on the electrical tests but still have the same symptoms." In Dr. Wellin's
opinion, claimant's neurogenic injury and pain must be considered permanent
since it still continues five years after the accident (Court Exhibit 1, pp 51,
Claimant also developed trochanteric
over the course of these years. Dr. Wellin stated that although bursitis could
be chronic in nature, it could be controlled with anti-inflammatory drugs or an
injection of cortizone. He could not say, therefore, that the bursitis was
permanent (Court Exhibit 1, p 51). As of February 6, 2002, the date of
claimant's last visit to Dr. Wellin, claimant had not developed arthritis (Court
Exhibit 1, p 62 ). Dr. Wellin stated that the longer claimant does not develop
arthritis, the better his chances are that it may not develop (Court Exhibit 1,
p 71). However, there is still a chance that it will develop (Court Exhibit 1, p
At the request of the defendant, claimant was also examined by Dr. Louis J.
on August 15, 2003 (Court Exhibit 2, p 3). At that time, claimant complained of
constant pain in his right lumbar area which radiated into his right buttock and
down his right leg posteriorly to the foot. Claimant rated this pain at six or
seven on a scale of ten, with ten as the greatest. He had no other complaints
(Court Exhibit 2, p 6-7). Dr. Benton observed that claimant was not using any
walking aids such as a cane or a walker. He bore full weight on both lower
extremities but appeared to have a very slight limp favoring the lower right
extremity. He did not appear to be in pain, according to Dr. Benton, since he
was not walking with a hesitant gait (Court Exhibit 2, p 10-11). Dr. Benton also
found no muscular atrophy which could result if a muscle was not being used
(Court Exhibit 2, p 12). He determined that claimant had a normal range of
motion on the right and left hips but that he complained of mild discomfort at
the limits of the internal and external rotation on the right side (Court
Exhibit 2, p 14). He found no orthopedic problems with the right knee and no
residual disability at the right ankle, but he did find that claimant had a
decreased sensation to light touch over the entire right leg in comparison to
the left leg (Court Exhibit 2, pp 16,18, 20). In conjunction with a review of
the medical data, this examination indicated to Dr. Benton that claimant
suffered a nerve injury to his right lower extremity which was noted in his
records as either a lumbar plexopathy or a sciatic nerve neuropraxia (Court
Exhibit 2, p 20).
With respect to the two different neurological studies that showed improvement,
Dr. Benton stated that these types of problems improve with the passage of time
(Court Exhibit 2, pp 21, 42, 43). He did not see any need for future surgery,
physical therapy or orthopedic treatment (Court Exhibit 2, p 22). Dr. Benton
noted that the records indicated that two years after the injury, claimant's hip
"looked good - without arthritic change" (Court Exhibit 2, p 8). Regarding
claimant's upper extremities, Dr. Benton found no evidence of abnormal motion at
the shoulders, elbows and wrists joints. The cervical spine indicated a full
range of motion. He indicated that claimant was well tanned and he observed
callouses on claimant's hands (Court Exhibit 2, pp 18-19).
II. Other Damages
Claimant Carmella Lombardo, claimant Giuseppe Lombardo, and their daughter,
Josephine Saccheri, testified regarding the other types of damages sustained by
claimants arising from this motor vehicle accident.
Carmella Lombardo testified about their home and the work that her husband put
into the house and surrounding acreage when they first purchased it. They kept
rabbits, chickens, goats, pigeons and cows there at one time (Tr, 39). They grew
large amounts of tomatoes to make Italian sauce (Tr, 38). Some of the animals
they slaughtered for meat (Tr, 39, 101-102). Before his accident, her husband
would chop the wood used to heat their house, but he is no longer able to do
They are using the limited amount of wood left to heat their home (Tr, 54).
Their large Italian family, which includes five grandchildren, would frequently
visit them on the weekends. Since the accident the family comes because claimant
cannot enjoy these gatherings due to his injury (Tr, 37-38).
Josephine Saccheri, claimants' daughter, testified that her parents' house is
"no longer a fun place" (Tr, 86). No one goes there anymore because there is
always work to do. Her father has become a "grumpy old man". He's short
tempered and bored. He used to play with her children, but now he watches a lot
of television (Tr, 87, 88).
In March 1999, claimant was employed by the Pine Grove Resort Hotel working a
forty hour week and earning $11.00 an hour as a brick layer and a stone
(Tr, 93, 111). He has not worked at this or any other outside employment since
the accident. Before the accident, he worked on his house in the evenings and on
weekends. He has not worked on the house since the accident. He stated that the
roof needs to be replaced; the entire house needs finishing stucco; and the
garage needs to be finished. Claimant maintains that he is unable to fix the
roof since he can- not kneel or lift anything heavier than five gallons. The
porch on the front of the house needs some stone and
Based upon a fair preponderance of the credible evidence, the Court therefore
makes the following findings and awards:
(1) As a result of his accident on March 5, 1999, claimant suffered a splenic
laceration that required surgery, multiple left rib fractures, a comminuted
right posterior wall acetabulum fracture that required surgery, trochanteric
bursitis that is treatable by medication, either lumbosacral plexopathy or a
sciatic nerve neuropraxia resulting in permanent neurogenic pain down his right
leg and foot, and a laceration above his left eye that required sutures and left
a mild scar. The Court bases these findings on Court Exhibit 1 and Exhibit 5 and
concludes that these injuries were proximately caused by the accident on March
5, 1999. With respect to past pain and suffering, the Court finds $75,000 to be
reasonable compensation (
, Dooknah v Thompson
, 276 AD2d 664 [2nd Dept 2000]; Kahl v
MHZ Operating Corp.
, 270 AD2d 623 [3rd Dept 2000]; Spors v Stoll
AD2d 1083 [4th Dept 1998], Dooknah v Thompson
, 249 AD2d 260 [2nd Dept
(2) Claimant was 62 years old at the time of trial and has a life expectancy of
approximately 16 years.
For his future pain and suffering, the Court determines $175,000 to be
reasonable compensation. The Court credits the testimonies of Drs. Wellin and
Benton to the extent that each agreed that claimant has not developed arthritis
to date and notes that Dr. Wellin stated that the longer claimant goes without
developing it, the more his chance for developing will decrease. Both physicians
indicated that the acetabulum fracture healed well. The Court credits the
testimony of Dr. Benton that he did not see the need for future surgery or
physical therapy. The Court bases these findings on Court Exhibits 1 and 2
, Kahl v MHZ Operating Corp
; Spors v Stoll,
; Dooknah v Thompson
(3) The Court finds that claimant lost $106,040 in past income, based on his
testimony that his net weekly income was $440.00 per
(1999/43 weeks; 2000-2002/52 weeks; 2003/42 weeks).
(4) The Court awards claimant $114,400 for future lost income based upon his
work life expectancy of approximately 5
($22,880 [$440 x 52] x 5 years).
(5) The Court makes no award for past or future medical expenses.
(6) The Court makes no award for the value of household services that claimant
would have performed but for his injuries, because there was insufficient
information in the record to calculate the value of such services (see footnote
(7) The Court does not award claimant Carmella Lombardo any damages for her
lost earnings during the year she cared for her husband, since such are not
(Barnes v Keene
, 132 NY13, supra
; Syczhk v Szczerbaniewicz
233 App Div 342, supra)
. However, on her derivative claim for loss of
consortium, claimant Carmella Lombardo is entitled to compensation in the amount
of $6,000.00 ($20,000 x .30 = $6,000).
The Court therefore finds claimants Guiseppe and Carmella Lombardo suffered the
Past Pain and Suffering $ 75,000
Future Pain and Suffering $175,000
Past Lost Income (Giusseppe)
Past Lost Income (Carmella) 0
Future Lost Income $114,400
Loss of household services 0
Past Medical Expenses 0
Future Medical Expenses 0
Consortium $ 20,000
Defendant's 30% share of
Because defendant has been found to be 30 per cent at fault for this accident,
the Court awards claimant damages totaling $141,132 and awards his wife damages
in the amount of $6,000.00. The Court exercises its discretion to set interest
on these awards at the presumptively reasonable statutory rate of 9 per cent to
run from June 2, 2003, the date of the liability decision. Any motions on which
the Court previously reserved judgment or which were not previously decided are
The Chief Clerk is directed to enter judgment for Giuseppe Lombardo in the
amount of $141,132 and judgment for Carmella Lombardo in the amount of
To the extent that the claimant has paid a filing fee, it may be recovered
§11-a(2) of the Court of Claims Act.
Let judgment be entered accordingly.
March 31, 2004
HON. JUDITH A. HARD
Judge of the Court of Claims
Claimant Carmella Lombardo's cause of action
is derivative in nature, and unless otherwise indicated or required by context,
the term "claimant" refers to Giuseppe Lombardo.
Acetabulum: a cup-shaped depression on the
external surface of the hip bone, with which the head of the femur articulates
(Stedman's Medical Dictionary, 27th Edition).
Although claimant maintains in his post-trial
brief (p 3) that he suffered from a cerebral edema, the Court only found
reference to a "possible" cerebral edema noted from a CAT scan of his brain at
Ellenville Hospital (Exhibit 5/Ellenville Community Hospital). He was not
treated for a cerebral edema at Westchester County Medical Center or at St.
Dr. David E. Wellin graduated from the Albert
Einstein College of Medicine, Bronx, New York, in 1974. He is licensed to
practice medicine in the State of New York. He completed one year of a surgical
residency at Montefiore Hospital also in the Bronx. In 1978, he completed three
years of an orthopedic surgery residency at the Albert Einstein College of
Medicine. He is board certified in orthopedic surgery. Since 1978 he has been on
the faculty of the Department of Orthopedic Surgery, New York Medical College,
Valhalla, New York. He has published two articles regarding orthopedics.
Claimants testified through an
This testimony is contrary to the medical
records from St. Francis Hospital that claimant was discharged ambulatory with a
walker (Exhibit 7/St. Francis Hospital).
At the time of the accident, Carmella Lombardo
took one year off from work to care for her husband. No medical evidence was
presented to the Court to establish that nursing care was required or the
reasonable value of such care (see
, Cesnavicius v State of New
, UID 2002-013-501, Claim No. 78324, Feb. 14, 2002, Patti, J.). In any
event, it would be inappropriate for the Court to consider any evidence
regarding the amount of her lost wages (id.
, Barnes v Keene
NY 13 ; Syczhk v Szczerbaniewicz
, 233 App Div 342 [4th Dept
Dr. Wellin testified that neurogenic pain is
the result of a nerve that has been bruised or stretched and typically does not
manifest itself until some time after the injury. As the nerve heals itself,
numbness or tingling occurs (Court Exhibit 1, pp 25-26).
Dr. Wellin testified that in his practice he
sees a fair number of injuries to the sciatic nerve following a fracture to the
acetabulum since the sciatic nerve is located within one inch behind the hip
(Court Exhibit 1, p 31).
Injury to the lumbosacral plexus (Court
Exhibit 1, p 39).
Inflammation of the tissues overlying the
trochanter (the hip) (Court Exhibit 1, p 48).
Dr. Louis J. Benton graduated from the
University of Virginia Medical School in 1966. He completed one year of his
surgical residency at Cornell Medical Center Hospital, and two years in general
surgical residency with the United States Public Health Service. He completed
one year of fellowship at Oxford University in England and three years of a
residency in orthopedic surgery at Cornell Medical Center Hospital. He privately
practiced for fourteen years and is board certified in orthopedics. He completed
another fellowship in upper extremity orthopedics in Denver, Colorado. He
presently is employed as an orthopedic surgeon at Albany Veterans Hospital.
In their brief, claimants request damages
for the cost of oil heat for the next ten years, but there was no evidence in
the record from which the Court could calculate such damages.
In the Court's decision regarding
liability it is stated that, "He [claimant] was employed by the Pine Grove
Resort Hotel and that day was supposed to be his last day of employment there."
The Court intended to state that March 5, 1999 turned out to be his last day of
employment there due the accident that occurred that day.
Claimant testified that it would cost
$7.00 a square foot to do the stucco work and $80-$100 an hour to do the work on
the porch over a period of two to three weeks. Claimant testified to these
amounts based upon his lifelong experience as a mason and a stone worker. The
Court is allowing this testimony regarding hourly charges into the record.
Claimants further maintain in their brief that they will incur the following
costs: roof replacement/$10,000; stone patio/$5,000, stucco work/$20,000;
$32,500 for loss of produce and livestock. However, there is no evidence in the
record from which the Court could calculate the damages for any of the foregoing
(e.g., the hours necessary to complete the work, the cost of the products to
complete the work, the value of the produce and livestock, the amount of the
livestock, an estimate for the roof replacement, an estimate for the stucco
See, PJI vol 1B, App B, Table 1,
See also, claimants' bill of particulars.
Since there was no proof offered regarding health insurance or any other
benefits, the Court will not make any award regarding these items.
See, PJI vol 1B, App B, Table 1, 2004. In
their brief claimants maintain that Giuseppe Lombardo has a 10 year working life
expectancy and cited "Table 4 of the Pattern Jury Instructions". It is unclear
how claimants derived that number. Further, although claimants maintain in their
brief that claimants' income rose slightly less than 10% a year and future lost
earnings should be adjusted at such rate, no evidence was presented at trial
regarding inflationary rates, nor was any evidence presented that claimant
intended to work full time in these later years.