New York State Court of Claims

New York State Court of Claims

CIANCIOLA v. THE STATE OF NEW YORK, #2005-009-140, Claim No. 94634


In this damages decision, claimant was awarded the sum of $150,000.00 for pain and suffering (past and future), after reduction for his 25% comparative fault.

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:
Defendant's attorney:
Attorney General
BY: Roger B. Williams, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 26, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

This claim arose on June 2, 1996, when claimant suffered injuries when the motorcycle he was operating struck a curb and crashed on New York State Route 31 in the Hamlet of Savannah, in Wayne County, New York. The trial of this claim was bifurcated, and in a Decision dated June 26, 2002, this Court determined that the State of New York was 75% liable for the injuries sustained by claimant (
Cianciola v State of New York, Ct Cl, June 26, 2002, Midey, J., Claim No. 94634 [IUD No. 2002-009-101]).[1]
A trial on the issue of damages has since been held, at which claimant testified as to the extent of his injuries. Additionally, claimant presented the testimony of Dr. Richard Benevigna, his treating physician at the VA Medical Center in Canandaigua (herein after referred to as "VA"). Daniel G. DiChristina, M.D., an orthopedic surgeon, performed an Independent Medical Examination (IME) on claimant on behalf of the State. Dr. DiChristina's report was admitted into evidence (see Exhibit B), and he also testified at trial on behalf of the State.

As stated above, claimant suffered his injuries on June 2, 1996, when he was involved in a motorcycle accident in Savannah, New York. He was proceeding west on New York State Route 31 when he failed to negotiate a curve and struck a curb, which caused him to lose control of his motorcycle and crash. Claimant testified that he was thrown approximately 50 feet from his motorcycle in this accident. Claimant was taken by ambulance to the emergency room at Newark-Wayne Community Hospital, where he was diagnosed with a fracture of the left clavicle, a fracture of the left scapula, fractures of the 4
th, 5th, and 8th ribs on his left side, and a small avulsion fracture in his left foot. He did not exhibit any evidence of a pneumothorax, but on the day after his admission, he was observed with a small pleural effusion. He was placed in a sling for his fractures, and remained in the hospital for five days. When he was released, he was fully ambulatory without any assistive devices. Upon his release, he had no complaints of any significant pain or discomfort, although he was prescribed Darvocet for pain.
Mr. Cianciola's attending physician during his hospital confinement was Reuben J. Washington, M.D., an orthopedic specialist. Following his discharge, claimant continued to receive treatment from Dr. Washington for his fractures.

Dr. Washington was not called as a witness at this damages trial. His notes and records of his treatment of claimant, however, produced pursuant to judicial subpoena, were received into evidence (see Exhibit E).

The records of Dr. Washington confirm that claimant received medical treatment on a fairly regular basis from June, 1996 through March, 1997. Claimant was then not seen by Dr. Washington again until March, 1998, approximately one year later. Following that appointment, claimant next sought medical attention from Dr. Washington in February, 2000, when he then resumed regular treatment from Dr. Washington for approximately one year.

Since claimant did not call Dr. Washington as a witness, defendant has requested a "missing witness" inference to be drawn by the Court for his failure to do so. In order to invoke this inference, defendant must establish "that the uncalled witness is knowledgeable about a material issue upon which evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party." (
People v Gonzalez, 68 NY2d 424, 427). The "missing witness" inference is available in civil cases, and may even be applied in trials without a jury (Turner Press v Gould, 76 AD2d 906), and has been applied when a party has failed to call his own physician as a witness (Seligson, Morris & Neuburger v Fairbanks Whitney Corp., 22 AD2d 625; Bradshaw v State of New York, 24 AD2d 930).
To support his claim for damages, claimant instead relied upon the testimony of his current treating physician, Dr. Richard Benevigna, from the VA. While it might have been preferable to hear testimony from a physician who treated claimant immediately following his accident, claimant did produce competent medical testimony from Dr. Benevigna regarding claimant's injuries, and on this basis the Court finds defendant's request for a "missing witness" inference to be without merit.

In any event, and as noted above, Dr. Washington's records of his treatment of claimant were admitted into evidence, and these records establish that claimant underwent a fairly conservative course of treatment for the multiple fractures sustained by him in his accident. The records reveal that during his first few visits with Dr. Washington, claimant had complaints of mild pain in his shoulder and clavicle, but that the pain was not so severe that claimant was taking any pain medication. After approximately six months, however, claimant began to register complaints of residual pain in his left foot, although he was found to have full range of motion in his foot and ankle. At his December 30, 1996 appointment with Dr. Washington, claimant again complained of pain in his left foot, for which he received an injection of medication in his left foot.

Subsequently, in March, 1998, claimant met with Dr. Washington and again complained of pain in his left foot and achilles tendon. There were no notations in the records of any complaints relating to his collar-bone, shoulder or back.

As mentioned previously, after this appointment there was no indication in the medical records that claimant sought further treatment from Dr. Washington for a period of approximately two years, when claimant visited Dr. Washington with complaints of pain in his left shoulder. X-rays revealed that this fracture had healed properly, and Dr. Washington recommended physical therapy. Claimant's last appointment with Dr. Washington occurred on January 17, 2001, when he continued to register complaints of pain in his collar-bone area, although he did have normal range of motion.

In his trial testimony, claimant testified that following his accident, he remained out of work for approximately five weeks, returning to work on July 12, 1996. Upon his return, claimant indicated that he was restricted in his activities, and that he was unable to perform all of the duties which were required of him prior to his accident. He also testified that during his period of treatment with Dr. Washington, he continued to have pain in his collar-bone and rib areas (even though not reflected in Dr. Washington's records), which not only affected his ability to perform at work, but also significantly limited his normal recreational activities.

Claimant also testified that he began to experience significant pain in his lower-back area shortly after this accident, and that he had continually registered his concerns of lower-back pain during his many appointments with Dr. Washington. However, there is no mention in Dr. Washington's medical records of any complaints related to claimant's lower back.

Claimant testified that he left Dr. Washington and began seeking medical treatment from Dr. Benevigna at the VA in July, 2002.

Dr. Benevigna testified that he first examined claimant in July, 2002, and also saw him in July, 2003 and numerous times during 2004. He testified that claimant continued to experience pain in his clavicle, shoulder, scapula, and left foot, and that such pain was all attributable to the injuries claimant suffered in his accident. He testified that such injuries, even though healed, may require future medical attention, and can be considered permanent. He stated that he prescribed Naprosyn and Tramadol to alleviate claimant's pain.

Dr. Benevigna also testified regarding claimant's complaints of lower-back pain. These complaints, however, were first made during Dr. Benevigna's examination in July, 2003. Claimant had not mentioned any problems with his lower back when he first met with Dr. Benevigna in July, 2002.

In essence, Dr. Benevigna testified that the injuries suffered by claimant to his scapula, clavicle, shoulder, ribs, and left foot should be considered permanent injuries, and that claimant may expect to endure continued pain from these injuries on an intermittent basis. Dr. Benevigna, however, was unable to definitively attribute claimant's lower-back pain to the motorcycle accident. Based upon a disability finding by the VA, Dr. Benevigna concluded that claimant was considered 40% disabled as a result of these injuries.

As mentioned previously herein, claimant underwent an IME administered by Dr. Daniel DiChristina, an orthopedic surgeon. Dr. DiChristina testified that claimant has suffered some loss of his range of motion in his left shoulder as a result of the injury. He questioned whether the continued complaints of pain made by claimant in his rib area were valid, and therefore discounted these complaints in his report. Dr. DiChristina also questioned the reliability of his examination of claimant's left foot and ankle, and concluded that claimant had suffered a minimal impairment of range of motion in this area.

Significantly, Dr. DiChristina did not find any causal relationship between claimant's complaints of lower-back pain to any injuries suffered by him in the accident. Dr. DiChristina noted that there were no complaints of back pain made by claimant in his hospital records, and that claimant, during his IME, stated that his lower-back pain commenced approximately three months after his accident.

In sum, Dr. DiChristina acknowledged the multiple fractures suffered by claimant in his motorcycle accident, but disagreed with Dr. Benevigna as to the extent of the permanency of these injuries. Dr. DiChristina concluded that these injuries resulted in an overall 5% impairment to the whole person. As mentioned above, Dr. DiChristina did not attribute claimant's complaints of lower-back pain to the accident, and that any such pain was not causally related.

Based upon the foregoing, the Court is unable to find that claimant's complaints of lower-back pain are causally related to the accident. There is no dispute, however, that claimant suffered multiple injuries in this accident, including fractures to his clavicle, scapula, several ribs, and his left foot. In order to adequately compensate claimant for his non-economic loss, the Court hereby awards damages in the amount of $110,000.00 for past pain and suffering.

With respect to future pain and suffering, the medical experts testifying for the respective parties differed substantially in their conclusions. Dr. Benevigna concluded that claimant could be considered 40% permanently disabled as a result of his injuries. However, he considered claimant's lower-back pain as a significant factor in reaching this determination. As previously found herein, the Court has not attributed such lower-back pain to the accident.

Dr. DiChristina, the State's expert, did not consider claimant's complaints of lower-back pain in his analysis, and found that claimant's injuries were well healed, with only a slight degree of permanence.

The Court accepts claimant's testimony that he is somewhat restricted in his recreational activities as a result of this accident, that his pain "comes and goes"[2]
, and that he continues to take medication to relieve this pain on an as-needed basis.
As a result, the Court hereby awards the sum of $90,000.00 for future pain and suffering.

There was no testimony at trial to support any claim for reimbursement of medical expenses, either past or future. Testimony did establish that claimant has sought treatment, and continues to seek treatment, from the VA, and that he is entitled to receive medical treatment at this facility at no cost to him.

Claimant did seek compensation for loss of future earnings. Testimony at trial established that prior to his accident in 1966, claimant was receiving compensation in the amount of $225.00 per month for his service with the Naval Reserves. Claimant testified that following his accident, he was deemed disabled and unfit for further military service. As a result, he received severance pay of approximately $24,000.00. In October, 1998 he was determined to be 20% disabled, but this has since been increased to a 40% disability, for which he now receives a monthly disability payment of $454.00. With his monthly disability payment, however, claimant must reimburse the Navy for approximately $8,000.00 of his severance pay, and payments of approximately $200.00 per month have been withheld from his monthly disability payment until this amount has been repaid.

Claimant is entitled to receive these disability benefits for as long as his disability remains, and at the time of the damages trial, claimant was still considered disabled by the Naval Medical Board.

Based on the above, therefore, the Court finds that the monthly payment that claimant was receiving for Naval Reserve duty of $225.00 has been completely offset by the monthly disability payment that he currently receives, even taking into account the temporary reduction attributable to the severance pay overpayment.

Furthermore, although claimant testified that he has been unable to continue with his present employment due to his disability, the Court does not find sufficient evidence to establish that his inability to continue with his current employment is causally related to the 1996 accident. As a result, the Court finds that any award for lost wages (either past or future) is entirely too speculative, and therefore no such award is made.

Accordingly, based upon the foregoing, the Court finds that the claimant has suffered total damages of $200,000.00 ($110,000.00 for past pain and suffering and $90,000.00 for future pain and suffering). This award must be reduced by the percentage of claimant's comparative fault as found in the Court's prior decision on liability. As a result, after applying claimant's 25% comparative fault to the total award, the Court hereby awards claimant the sum of $150,000.00.

The amount awarded herein shall carry interest at the rate of 9% per year from the date of the determination of liability on June 26, 2002 (see
Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540).

September 26, 2005
Syracuse, New York

Judge of the Court of Claims

[1] Unpublished decisions and selected orders of the Court of Claims are available via the Internet at
[2] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.