New York State Court of Claims

New York State Court of Claims

MORAN v. THE STATE OF NEW YORK, #2008-009-184, Claim No. 106923


Claimant was awarded $120,000.00 for past and future pain and suffering for injuries suffered by him in a fall from a ladder at Watertown Correctional Facility.

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:
BY: Martin J. Rothschild, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 26, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


In a Decision dated December 21, 2005, and filed January 10, 2006, this Court found the defendant State of New York 75% liable for injuries suffered by claimant when he fell from a ladder on September 5, 2002 at Watertown Correctional Facility, where he was then incarcerated. A trial limited to the issue of claimant’s damages was held on January 16, 2008, and this decision addresses that issue.

Claimant testified that he was 45 years old at the time of the accident. He had previously testified at the liability trial that when he fell from the ladder, he suffered injuries to his right ankle when his right foot became entangled in the bottom rung of the ladder, causing him great pain.

Immediately after his fall, claimant testified, he was taken to the infirmary at Watertown Correctional Facility, where he was examined and transferred to Samaritan Medical Center in Watertown, New York for treatment. At Samaritan Medical Center, claimant was diagnosed with a medial dislocation of the subtalar joint of his right ankle. The ankle joint was realigned, and put in a soft cast to immobilize the injured area.

Claimant was returned to the infirmary at Watertown Correctional Facility, where he remained for a period of 23 days. During this time, claimant was essentially bedridden, as he was told to stay in bed unless he had to use the bathroom. Claimant was given Motrin for pain, but he testified that this did nothing to relieve the pain that he was suffering at that time.

Claimant also testified that after approximately six days, the soft cast was replaced with a hard cast, and that eventually he was placed in a walking cast, which was removed in December, 2002. Claimant testified that his ankle was therefore set in some sort of cast for a total of 12 weeks.

Claimant also testified that initially, he required the use of crutches to assist him with walking. At some point in 2003, claimant testified, he was able to discontinue use of the crutches, but he then needed the use of a cane for walking. Claimant also testified that after his cast was removed, he was provided with an ankle sleeve, as well as boots, to provide additional support for his ankle.

As a result of his injury, claimant testified that he was restricted from any and all physical activity for approximately one year, and that even after one year, the condition of his ankle prevented him from any vigorous recreational activities.

Claimant stated that even at the present time, he still has difficulty walking up or down stairs, hills, or on any uneven ground, without the use of a boot. Without the boot, he endures considerable pain while walking or during any recreational activity.

Finally, claimant testified that he was released from the custody of the Department of Correctional Services in June, 2007, and that at the time of trial he was unemployed. He did not produce any evidence of past employment, nor did he testify that he was currently involved in any vocational rehabilitation.

John J. Cambareri, M.D., offered testimony[1] as claimant’s medical expert. Dr. Cambareri testified that he conducted a medical examination of claimant on September 11, 2007. He confirmed the prior diagnosis that claimant had suffered a dislocation of the right subtalar joint, and he noticed diffuse swelling around the foot and ankle, as well as diffuse tenderness in the subtalar joint. X-rays were taken of claimant’s ankle during this examination, which were compared by Dr. Cambareri to the initial x-rays taken at the time of claimant’s injury. Dr. Cambareri noticed a progression of arthritis in both the ankle and subtalar joint when comparing the two sets of x-rays. Dr. Cambareri concluded that the arthritis was caused by claimant’s fall, that it is permanent in nature, and that it will continue to progress.

Dr. Cambareri also conducted an examination of claimant’s range of motion, by comparing measurements taken from claimant’s injured right foot to measurements from his left foot, which was not injured in the fall. Dr. Cambareri found a measurable loss of motion in both dorsal flex and plantar flex, and testified that claimant had endured a 75% loss of subtalar motion when compared to normal motion.

Dr. Cambareri also testified that claimant has scar tissue at the site of his injury, which produces chronic swelling, for which there is no treatment. He concluded that claimant will permanently require support for both his foot and ankle and that his limitation of movement will permanently impair his ability to walk on uneven surfaces and hills. As for claimant’s posttraumatic arthritic condition, Dr. Cambareri concluded that this condition will progress as claimant ages, and that it will cause him difficulty with prolonged walking or standing, as well as any walking on uneven surfaces.

Daniel DiChristina, M.D., testified as defendant’s medical expert. Dr. DiChristina conducted an independent medical examination on January 5, 2007. He concurred with Dr. Cambareri’s diagnosis that claimant suffered a dislocated subtalar joint of the right ankle as a result of his fall from the ladder on September 5, 2002. Dr. DiChristina also testified that claimant had suffered a fracture of the 5th metatarsal bone in his right foot in this fall.

During his examination, Dr. DiChristina testified that he used a goniometer to measure the amount of flexion in each foot. Based on the measurements taken of the ankle and the subtalar joint, Dr. DiChristina testified that he was able to grade claimant’s impairment based upon the American Medical Association’s Guide to the Evaluation of Permanent Impairment. By his analysis, Dr. DiChristina concluded that as a result of the subtalar dislocation, claimant had suffered a 2% impairment of the whole person.

Based on this finding, Dr. DiChristina testified that claimant will not be able to run again, and that he will have problems while working or walking on uneven ground. Dr. DiChristina further agreed that claimant had developed some arthritis in his subtalar joint as a result of the injury.

Although Dr. DiChristina’s measurements differed in some degree from those made by Dr. Cambareri, Dr. DiChristina applied the measurements taken by Dr. Cambareri to the American Medical Association’s Guide to the Evaluation of Permanent Impairment. According to Dr. DiChristina, if Dr. Cambareri’s measurements were accepted, claimant would have suffered a 3% impairment of the whole person, according to the Guide. In Dr. DiChristina’s opinion, the difference between his findings (a 2% impairment) and those of Dr. Cambareri (a 3% impairment), was not significant.

Based on the testimony of both medical experts, the Court finds that claimant suffered a subtalar joint dislocation in his right foot and ankle as a result of his fall at Watertown Correctional Facility on September 5, 2002. Testimony established that claimant also sustained a fracture of the 5th metatarsal bone in his right foot in this fall.

Testimony has also established that claimant was confined to the infirmary at Watertown Correctional Facility for a period of 23 days following his fall, and that he had a cast (in one form or another) on his right foot and ankle for approximately 12 weeks. As a result of his injury, he was restricted from any and all physical activity for approximately one year, but the condition of his foot and ankle also prevented him from participating in many recreational activities long after this one-year period.

The Court further finds that from the date of his injury on September 5, 2002, to the date of the damages trial, a period in excess of five years, claimant has endured both pain and limitations of movement in his right foot and ankle, together with progressive posttraumatic arthritis in his subtalar joint. Therefore, this Court finds that claimant has suffered damages in the amount of $60,000.00 for past pain and suffering.

Both medical experts testified that the impaired range of motion in both claimant’s ankle and subtalar joint is permanent in nature, and that these limitations in range of motion are directly related to the injury suffered in his fall from the ladder. Both experts also attribute the posttraumatic arthritis to the injury suffered in claimant’s fall, and that this arthritic condition is not only permanent in nature, but will also progress as claimant ages, causing him increased pain and, over time, a lessened tolerance for walking. Testimony has also established that claimant can no longer engage in certain recreational activities, and that he will have difficulties in walking, especially on uneven surfaces, as well as difficulties with any prolonged walking or standing.

At the time of trial, claimant was 51 years of age, with a life expectancy of 26.6 more years (PJI Vol. 1B, App. A, Table 2). Based on the permanency of claimant’s medical condition, and the limitations on his normal activities, the Court hereby determines that $100,000.00 is an appropriate award for future pain and suffering.

As stated at the outset of this decision, the State was found 75% liable for claimant’s injuries in this Court’s prior decision on liability. Therefore, the Clerk of the Court is hereby directed to enter judgment in the amount of $120,000.00 in favor of claimant Charles Moran. The amount awarded herein shall carry interest at the rate of 9% per year from December 21, 2005, the date of this Court’s decision as to liability (see Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540).

Any filing fee paid by claimant may be recovered pursuant to § 11-a(2) of the Court of Claims Act.


June 26, 2008
Syracuse, New York

Judge of the Court of Claims

[1]. The testimony of Dr. Cambareri was taken on January 4, 2008, prior to trial. A “DVD” of his testimony was received into evidence (Exhibit 7) and has been viewed and considered by the Court in this decision. A transcript of his testimony taken on January 4, 2008 was also received into evidence (Exhibit 8).