New York State Court of Claims

New York State Court of Claims

SULLIVAN v. STATE OF NEW YORK, #2007-016-055, Claim No. 104667


Damages trial for broken ankle resulted in a net pain and suffering award (after accounting for claimant’s one-third share of liablity) of $193,333 (including 15,000 for medical costs).

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):

Alan C. Marin
Claimant’s attorney:
Worby, Groner, Edelman, LLPBy: Paul J. Campson
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Joseph L. Paterno
Third-party defendant’s attorney:

Signature date:
December 4, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the decision following the damages portion of the trial of the claim of Gene Sullivan. By a decision dated December 22, 2005 and filed January 23, 2006, the defendant State of New York was found two-thirds liable for Mr. Sullivan’s January 8, 2001 slip and fall on an icy walkway. This walkway led to the infirmary at the Arthur Kill Correctional Facility, where Sullivan was incarcerated at the time.

Claimant testified that when he fell, the pain started at once: “My left ankle began throbbing immediately and I noticed it was distorted. It was going at an angle that wasn’t - - that didn’t look right. And I dragged my leg and I walked back up to the clinic.” The clinic or infirmary was his regular work assignment at the Arthur Kill facility.

Sullivan was put in a wheelchair and X-rays were taken that showed a left ankle fracture. After a few hours, the leg was elevated, the patient given pain medication and an ice pack, and then transported to Staten Island University Hospital, where another X-ray was taken and he was put in a hard, fiberglass cast that extended to just above his knee.

Claimant was transported back to the Arthur Kill Correctional Facility and assigned to its infirmary for four days. On January 12, he was returned to Staten Island University Hospital for open reduction internal fixation surgery, where he remained for six days confined to bed. A physical therapist taught claimant how to use a walker, and he was given one upon his discharge from the hospital on January 18, 2001.

Returned to Arthur Kill, Sullivan testified that he was back in the infirmary, bedridden for eight weeks and remained there for some five months, undergoing physical therapy three times a week, although the overall length of the treatment was not clear.[1] At one point, claimant’s left leg swelled up and he was taken back to the hospital for tests, but those proved negative. Thereafter, including time in other prisons, he no longer received physical therapy, and while Sullivan testified at some length about desiring such therapy, he offered no specific recommendation therefor from a physician.

Sullivan recalls that when he left the infirmary in July of 2001, he was given crutches which he used for two weeks. Then claimant was given a cane, and told by the facility’s medical staff to use it at all times. According to claimant, he was put on various painkillers. In early 2002, Sullivan was transferred to Fishkill Correctional Facility in Dutchess County.[2] Claimant said that at the time of the transfer, his left ankle was still painful.

Sullivan spent five months at Fishkill, which he said had “so many stairs. The stairs were causing me a lot of pain and swelling in my ankle.” His next stop was Mid-Orange Correctional Facility, and in July of 2003, he was transferred back to Arthur Kill, from which he was paroled on April 19, 2004.
In addition to the claimant, the Court heard from each party’s expert orthopedic surgeon. Claimant called Dr. Frank Watkins, who examined claimant on February 9, 2006 and, for its part, defendant called Dr. Edward Crane, who saw Sullivan on March 21, 2007.

Both doctors agree that the X-rays show that the fracture has healed, with Dr. Crane describing the result of the surgery as “excellent,” and characterizing the ankle fracture as a minor one. Crepitation, a popping, cracking sound, was noted by Dr. Watkins in claimant’s ankle, which Dr. Crane did not find in his examination. This could be an occasional condition, and Watkins did note that weather affected claimant. There is insufficient support in the record that any such condition was the result of the subject injury.

Defendant’s expert, Dr. Crane, found some calcification above the ankle joint, but not arthritis. Dr. Watkins found progressive arthritis caused by the fall, but offered no basis for same. Claimant, born in May of 1954, was over 50 years of age when seen by the two experts; moreover, claimant does not in his testimony suggest that any of his complaints are getting worse. My conclusion therefore is that claimant has not proven any progressive condition.

His left ankle still has some discoloration, and about a three-inch scar (cl exhs 8-10). The hardware from the January 2001 surgery remains. This consists of a plate bridging two bone fragments and the screws that anchor the plate; there is some tenderness because of it (cl exhs 5-7).

Dr. Watkins stated that the hardware should be removed and the next step should be “an ankle arthroscopy, look into the ankle and debride, clean out any post-traumatic changes in the ankle.” Dr. Crane, for his part, said that while the removal was not necessary, that if Sullivan were his patient, he would leave it up to him. Dr. Crane was most definite that arthroscopy was uncalled for, as the patient has “normal reticular surfaces.”

Claimant has not proven the need for the arthroscopy. But as for the hardware, it is undisputed that such no longer serves any purpose, and defendant’s expert is amenable to its removal. Dr. Watkins gave a figure of $30,000 for the hardware removal, arthroscopy and debridement surgeries, but did not break them down. Defendant offered no competing figures. I find $15,000 to be reasonable for the cost of future surgery to remove the hardware. Dr. Watkins spoke in terms of $5,000 for a course of physical therapy following the surgeries, but its not clear if that applies if only hardware is removed, so no attempt will be made to attach cost to it, and the item will be denied.

Sullivan had been a clerk/mail runner at the Arthur Kill infirmary, and after that did not hold a job in any correctional facility. He had played on the softball and basketball leagues in prison, but after his injury, in the correctional system and in the outside world after April 19, 2004, has not engaged in any sports activities. He indicated that he wanted to jog, but could not; since his injury he has gained 30 pounds. Claimant still tries to walk as much as possible with his cane because of doctor’s orders to get exercise because of his hypertension. Sullivan does go on long walks, using his cane the whole time.

Claimant lives in an apartment building with an elevator in Staten Island, residing with his sister; Mr. Sullivan’s wife died while he was incarcerated. Dr. Watkins observed Sullivan in the patients’ waiting room, presumably unawares, with an antalgic gait to his left side, i.e., he limped, and Watkins noted that claimant had to lean on the armrest of his chair to rise from his seated position. Dr. Crane described Sullivan’s gait as a minimal limp, if any. Crane explained that such evidence was a mix of the objective and subjective, although when asked in his examination to do so, Sullivan had difficulty walking on the balls of his feet.

To some extent, Dr. Crane supports his “slight, if any” conclusion as to the limp by noting that when asked to walk, Sullivan did so without his cane, although he had it with him at the time. Such is open to interpretation; it does not mean that claimant does not need a cane; Sullivan may have thought he was being asked to walk unaided. To this trier of fact, claimant came across as very matter-of-fact and not given to overstatement. I found him to be a credible witness insofar as he told the truth as he recalled it.

Dr. Crane found less range of motion loss than did Dr. Watkins, although it should be borne in mind that defendant’s expert found some diminution of claimant’s range of motion six years after the injury. In any event, the focus here is on what everyday physical tasks Sullivan became unable to do.

My conclusion is that Sullivan currently walks with a slight limp, and that this condition is permanent. Moreover, I accept claimant’s testimony as to daily activities he can no longer do as a consequence of his injury, and I conclude that he still has some occasional pain and stiffness.
In addition to the $15,000 for future surgery, claimant sustained past and future pain and suffering, arising from his injury. The trial on damages was conducted on May 8 and 9 of 2007; born on May 1, 1954, the actuarial tables afford the 53-year-old Sullivan a life expectancy of 25 years, for which no evidence was offered supporting a variance from such figure (PJI Vol 1B, App A, Table 2).

I find that for past pain and suffering claimant suffered damages in the amount of $125,000. For future pain and suffering, covering 25 years, I find $150,000.

Inasmuch as claimant has been determined to share one-third of the responsibility for his injury on January 8, 2001, the Clerk of the Court is directed to enter judgment in the amount of $193,333 for claimant Gene Sullivan, with interest from December 22, 2005, the date of this Court’s decision finding liability.

Any filing fee paid by claimant may be recovered pursuant to subdivision two of §11-a of the Court of Claims Act.

December 4, 2007
New York, New York

Judge of the Court of Claims

[1]. There was no testimony by claimant or either orthopedist, interpreting the records, as to how long the physical therapy in his first stint at Arthur Kill lasted. Note that there are “Returned from physical therapy” entries in his Arthur Kill medical records for, inter alia, March 28, April 4, 8, 9, 16 & 18 as well as September 26, 2001 (Department of Correctional Services Ambulatory Medical Records, contained within claimant’s exhibit 1).
[2]. Claimant testified that “I can’t tell you the exact month.” According to his Ambulatory Health Records (cl exh 1), Sullivan was in Fishkill no later than January 29, 2002.