New York State Court of Claims

New York State Court of Claims

PORTER v. THE STATE OF NEW YORK, #2008-015-509, Claim No. 112727


Claimant was awarded $200,000 ($150,000 past pain and suffering; $50,000 future pain and suffering) for ruptured patellar tendon which required open reduction with internal fixation.

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:
Greenberg & GreenbergBy: Mark D. Greenberg, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Kent B. Sprotbery, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 8, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


In a Decision filed April 11, 2008, the Court directed entry of an interlocutory judgment holding defendant 100% liable for the injuries suffered by claimant on an indoor basketball court at Hudson Correctional Facility. The damages phase of the trial of this claim was conducted on September 11, 2008.

The claimant, Barry Porter, testified on his own behalf at trial. Mr. Porter was born in Brooklyn, New York on April 5, 1964. He graduated from high school in 1982 and attended The State University of New York at Albany from which he graduated in 1987. Mr. Porter related his employment experience which included work for a variety of social and human services organizations.

The claimant testified that he was convicted of attempted robbery and incarcerated by the State of New York beginning on May 10, 2003. Mr. Porter was first housed at Cape Vincent Correctional Facility for a period of two years and was then transferred to Hudson Correctional Facility in 2005. It was there that he was injured while playing basketball on November 7, 2005. As described in the Court's earlier decision on the issue of liability, Mr. Porter was injured while playing basketball at Hudson Correctional Facility as the result of the negligence of the State of New York in failing to ensure that the basketball court had properly dried after mopping and before allowing the inmates to begin warmups.

The claimant testified that after slipping on a wet substance on the surface of the basketball court, he heard his knee pop and fell to the ground. He experienced pain in his knee and looked to observe that his kneecap had dislocated and was lodged in his thigh. Claimant testified that his knee was swollen and that he experienced a great deal of pain. He could not stand and remained on the floor until a nurse came to the gym and he was thereafter moved by stretcher to the infirmary. According to the claimant the journey to the infirmary was painful and bumpy because the stretcher was required to be taken down stairs to reach the infirmary.

Following his arrival at the infirmary the claimant was transported by ambulance to Columbia Memorial Hospital. No pain medications were provided either at the infirmary or during the transport by ambulance to the hospital. Mr. Porter was received at the Columbia Memorial Hospital Emergency Room where he was advised by a physician that he had ruptured his patellar tendon and that surgery would be required. Claimant was admitted to the hospital and surgery was performed three days later. During the three days preceding his surgery claimant experienced pain for which he was provided medication. Following surgery, Mr. Porter described his knee as "tender" and more painful than it had been prior to surgery. Claimant was given pain medications to address the pain. Mr. Porter testified that he was at Columbia Memorial Hospital for approximately one week, after which he was discharged and taken to the regional medical unit at the Coxsackie Correctional Facility where he stayed for an additional three to four weeks.

The claimant testified that while at the Coxsackie Correctional Facility he was confined to his room and provided pain medication for two or three days. Claimant testified that he experienced pain throughout his period at Coxsackie.

Mr. Porter was returned to Hudson Correctional Facility following his discharge from the regional medical unit at Coxsackie Correctional Facility. At Hudson Correctional Facility he ambulated using crutches including while walking to meals and programs. Claimant also wore a metal knee brace, which extended from his thigh to his calf, for "a couple of months." He continued using crutches until February or March 2006 when he began using a cane. While at Hudson Correctional Facility he attended physical therapy twice each week through April 2006. Mr. Porter left Hudson Correctional Facility in September 2006 and was sent to Queensboro Correctional Facility for approximately three to four weeks. He was not using crutches at the time of his transfer to Queensboro Correctional Facility although he continued to have pain and was unable to walk long distances. Following his October 10, 2006 release from Queensboro the claimant moved in with his sister in Brooklyn, New York where he still resides. Mr. Porter testified that he is unable to walk long distances and experiences chronic pain which is increased upon walking up stairs or down an incline.

Upon his discharge from incarceration Mr. Porter applied for public assistance due to the fact that he could not work as a result of his inability to sit or stand for long periods. While receiving public assistance claimant was assigned to work in a program designed to assist individuals with physical disabilities to return to work. He was eventually hired by the program, Abor Education and Training, and currently works as a case manager assisting clients with medical limitations secure employment.

Mr. Porter testified that he currently lives in the basement of his sister's house in Brooklyn, New York. He related that his left knee feels "tight" when he wakes up in the morning and that he engages in a stretching routine every morning for approximately five to ten minutes. He related that he experiences pain in his knee when it snows or rains and that his knee feels sore and stiff as a result of the air conditioned environment at work. Mr. Porter stretches his knee several times a day and experiences difficulty kneeling and squatting. He testified that he can feel the cable which was inserted in his knee and that the knee sometimes "gives out on me." He does not have full sensation on the left side of his left knee and experiences swelling and constant pain. He cannot run and experiences pain while walking up or down stairs and hills. Although he played basketball on weekends prior to his accident he has not played the sport since. He continues to wear an elastic knee brace and has a four-inch scar on the front of his knee slightly above his kneecap.

On cross-examination the claimant testified that he had not injured his left knee prior to November 7, 2005 although he suffered neck and shoulder injuries in a car accident which occurred in March 1992. Claimant was involved in a second automobile accident in September 1992 which aggravated the neck and shoulder injuries first suffered in March of that year. In 1994 the injuries to claimant's neck and shoulder were determined to be permanent and claimant was advised that he would suffer continuing limitations as a result. Mr. Porter also acknowledged that he injured his right shoulder in an April 2001 car accident. Surgery was required to repair his injured shoulder and claimant was advised by his doctor that he should not participate in lifting or repetitive bending as it could result in re-injury to his shoulder and neck. Mr. Porter testified that he stopped wearing the knee brace in January 2006 and discontinued the use of crutches in favor of a cane in February or March 2006. He further acknowledged that he progressed physically as a result of physical therapy that he received following surgery to his left knee. Following his release from prison the claimant moved into the second floor of his sister's home. He later decided to move into the basement of his sister's home, which required him to walk two flights of stairs to the second floor shower each day.

Claimant offered a portion of the examination before trial of Mark Consul in which Mr. Consul testified that he observed claimant's knee to be "swollen and twisted" and that the claimant appeared to be in pain while lying on the gymnasium floor following the incident on November 7, 2005.

Claimant called Dr. Barry Constantine as an expert medical witness. Dr. Constantine related that he is a licensed physician in the State of New York and that he has been involved in orthopaedic medical practices in Troy and Oneonta, New York since January 1983. He estimated that he has performed 25 to 30 open reduction repairs of ruptured patellar tendons. Dr. Constantine reviewed claimant's medical records and performed independent medical examinations of the claimant's left knee and lower extremity in May 2007 and July 2008.

Dr. Constantine testified that the claimant suffered a ruptured patellar tendon as well as injury to the quadricep mass or muscles on both sides of the quadricep tendon. He described claimant's observation of his kneecap in his thigh, approximately eight inches above his knee, as consistent with the type of injury suffered. He described claimant's injury as involving significant pain. Injury to the tendons and muscles involved results in heavy bleeding which causes tension in the knee joint and, in turn, substantial pain.

According to Dr. Constantine, the claimant's surgery was performed within a reasonable period of time and involved the use of cables to reinforce the surgical repair to claimant's patellar tendon. Although the witness testified that the use of cables was not inappropriate given the type of injury involved, he does not personally use cables in performing such repairs due to the potential for the cables to break or protrude through the skin requiring a second surgery to correct.

At his examination of the claimant in March 2007 Dr. Constantine observed a well-healed longitudinal anterior incision on claimant's left knee. He noted tenderness in the area of claimant's left knee. He also noted that although the claimant was able to fully extend his left knee he lacked ten degrees of flexion in that knee compared to his uninjured right knee. He further noted a discrepancy in the amount of mass in claimant's left knee as compared to his right. Dr. Constantine measured the circumference of claimant's left knee at 25 inches and his right knee at 26 inches. He attributed the reduction in mass of the left knee to secondary muscle atrophy. The doctor noted no instability in claimant's left knee. The witness related that the claimant complained of intermittent chronic pain in his left knee, limited mobility (bending), buckling of the knee which was diminishing over time and weakness in his left knee which resulted in difficulty ascending or descending stairs. Claimant also complained that he was unable to jog or participate in sporting activities. According to Dr. Constantine, claimant's subjective complaints are consistent with his findings on examination and are related to the injury suffered on November 7, 2005.

The witness stated that in his opinion the claimant had suffered a mild to moderate permanent functional impairment of his left knee as a result of the incident on November 7, 2005.

At the examination conducted in July 2008, Dr. Constantine noted that the claimant still lacked ten degrees of flexion in his left knee. He again measured the circumference of claimant's left knee, which he determined at that time to be 25½ inches as compared to 26 inches in claimant's right knee. He explained that he determined claimant to have a mild to moderate permanent impairment in that claimant could participate in normal activities of daily living but could not participate in heavy physical or sports-related activities.

On cross-examination Dr. Constantine testified that he did not consider claimant's previous automobile accidents in determining the extent of claimant's impairments and that it was possible limitations arising from the injuries sustained in the automobile accidents may also limit claimant's activities in the future. He agreed that the increase in the circumference of claimant's left knee noted between the examination in May 2007 and the examination conducted in July 2008 indicates an increase in the strength of claimant's left thigh and knee which would not be expected to the extent that atrophy was present.

The claimant rested his case at the conclusion of Dr. Constantine's testimony.

The defendant offered no witnesses or exhibits at trial and rested its case at the conclusion of claimant's proof.

Exhibit 1 received in evidence is an Inmate Injury Report dated November 7, 2005 which notes that the claimant injured his left knee while playing basketball. The report reflects that the claimant was complaining of severe pain and was transported to the Columbia Memorial Hospital Emergency Room for evaluation. The Inmate Injury Report • Medical Exam form dated November 7, 2005 (6:40 p.m.) contained within Exhibit 2 relates "[l]eft knee with edema, complained of severe pain, unable to move or walk." By all accounts claimant's surgery was both timely and successful. The Columbia Memorial Hospital Operative Report completed by Dr. Charles Kenny (Exhibit 4) states:
"Quadriceps mechanism was noted to be ruptured with a large smile-like tear extending from approximately 3-4 inches medial to the patella tendon to about 3-4 inches lateral to it. The entire quadriceps had ruptured and the patella was retracted approximately 2-3 inches higher from its usual position. The patella tendon was avulsed in 3 parts."
A #2-0 cerclage cable was placed through drill holes in the tibial tubercle and the distal portion of the patella to supplement the surgical repair of claimant's patellar tendon and quadriceps mechanism. Dr. Kenny noted that the claimant "tolerated the procedure well."

Exhibit 4 includes the Columbia Memorial Hospital Discharge Summary which relates that the claimant was "doing very well" and that his wound "is healing nicely." He was discharged from the hospital on November 15, 2005 with instructions to wear a Bledsoe brace locked in full extension for at least six weeks. The medications prescribed upon discharge included Lortab for pain and Coumadin, a blood thinner. During the course of his hospital stay the claimant was prescribed various medications for pain, including Morphine, Percocet, Demerol and Tylenol. The discharge summary reflects a final diagnosis of a ruptured patellar ligament, left knee, diabetes and tachycardia.

Exhibit 5 contains treatment notes from medical staff at the Hudson Correctional Facility as well as correspondence from Mitchell Rubinovich, M.D., an orthopaedist whom claimant consulted with regard to his injuries. Dr. Rubinovich first saw the claimant on December 23, 2005. During his examination, Dr. Rubinovich removed claimant's brace, instructed him to continue using crutches and advised that he should start physical therapy as soon as possible. Dr. Rubinovich stated that the claimant "has relatively good range despite the immobilization. He goes from 0 degrees to about 60 degrees. The patellar tendon appears to be intact. The wound is clean" (Exhibit 5).

Claimant's initial evaluation by the physical therapy staff at Hudson Correctional Facility on December 29, 2005 noted swelling in the claimant's left knee. In notes relating the results of subsequent physical therapy sessions claimant was described as improving. No complaints of pain are noted until the physical therapy session on January 31, 2006 where it is noted that the claimant complained of soreness in his left knee but "not bad". Slight soreness in claimant's left knee is noted on February 2, 2006. Claimant described his left knee as feeling "tight today" at the physical therapy session held on February 9, 2006 and the claimant complained of left knee soreness on February 14, 2006. A further complaint of soreness was noted in the physical therapy notes dated February 16, 2006. Thereafter the notes of therapy sessions through March 10, 2006 reflect that the claimant is improving and note that there were no complaints of pain in his left knee.

On March 10, 2006 claimant was seen again by Dr. Rubinovich. His summary of the examination states that claimant's range of flexion was from 0 degrees to "about 130 degrees". He noted a slight tenderness and occasional "picking" around the knee but stated that there is no instability and the patellar tendon appears to be intact. Physical therapy notes for the period subsequent to March 10, 2006 continue to indicate that the claimant is doing well and no complaints of left knee pain are noted. Claimant saw Dr. Rubinovich again on May 12, 2006 at which time complaints regarding neck and shoulder pain are noted. The remainder of the Hudson Correctional Facility medical notes contained within Exhibit 5 relate to treatment of neck and shoulder pain and do not involve treatment of claimant's left knee.

Exhibit 8 contains a summary of an independent medical examination performed at the defendant's request on October 19, 2007 by Dr. Louis J. Benton, Jr., an orthopaedic surgeon. Dr. Benton relates that the claimant complained of chronic pain which was particularly acute during wet or cold weather. He related difficulty going up and down stairs and that his left knee occasionally gives out. Claimant was not using either a cane or crutch at the time he was seen by Dr. Benton. Dr. Benton found the following:
"At the left knee, there is a 17 cm scar over the anterior aspect of this knee. He has some mild decrease in light touch laterally over this scar area. There is no effusion palpable. He has full extension and he flexes to 125°, no further due to discomfort over the anterior aspect of the left knee. There is no instability to gentle medial/lateral stress testing. There is no evidence of any anterior or posterior instability of the left knee. He has mild discomfort to retro patellar compression at the left knee. He has mild discomfort over the lateral joint line of the left knee. The left and right knee quadriceps measure 48 cm."
Dr. Benton concluded that the claimant has had a "very good result post patellar tendon rupture". His range of motion is "functional and almost normal, with a very minimal decrease in full flexion." Dr. Benton stated that claimant's post-surgical physical therapy has been successful and that he has regained almost complete motion of the left knee. Dr. Benton did not find any evidence of quadricep atrophy. Dr. Benton concluded:
"I believe that he demonstrates a mild to moderate permanent disability at this time at the left lower extremity; however, his physical therapy program has been most helpful in his rehabilitation, and it is possible that he will continue to see improvement concerning his residual symptoms."
The undisputed evidence substantiates the claim that as the result of the subject accident claimant suffered a ruptured patellar tendon as well as injury to the quadricep muscles requiring open reduction with internal fixation. He was hospitalized for one week and was thereafter transferred to the medical unit at Coxsackie Correctional Facility where he remained for three to four weeks. Claimant underwent an extensive regimen of physical therapy through approximately April, 2006. He ceased use of a full leg brace in December, 2005 and stopped using crutches in favor of a cane in February or March of 2006.

Although claimant's injury certainly involved significant pain, by all accounts his surgery and subsequent physical rehabilitation were successful. Both Drs. Constantine and Benton concluded the claimant suffered a mild to moderate impairment of his left knee which is permanent in nature. Claimant suffers intermittent weather-related pain. In addition, claimant established that he experiences pain while walking up stairs and while walking uphill or down a slope. He is unable to run or participate in sports and has difficulty kneeling and squatting. There is no credible evidence that claimant's shoulder and neck pain is causally related to the incident of November 7, 2005 and the Court rejects as overly speculative Dr. Constantine's assertion that future surgery may be required should the cerclage cable installed in claimant's knee break or otherwise malfunction. The court also rejects Dr. Constantine's finding of atrophy in claimant's left knee/thigh as contrary to both his finding of an increase in the circumference of claimant's knee over time and Dr. Benton's finding that both "[t]he left and right knee quadriceps measure 48 cm" (Exhibit 8).

Comparison of other similar cases leads this Court to the conclusion that the injuries sustained entitle the claimant to an award of $150,000.00 for past pain and suffering and $50,000.00 for future pain and suffering (cf. Calderon v Moriello, 11 Misc 3d 137 [A] [App Term 2006] [jury's award of $165,000 for past pain and suffering and $165,000 future pain and suffering was affirmed on appeal where plaintiff sustained torn lateral and medial menisci in knee which required arthroscopic surgery and injuries to neck and back consisting of intervertebral disc syndrome, segmental dysfunction and lumbar radiculopathy]; Hoerner v Chrysler Fin. Co., L.L.C., 21 AD3d 1254 [2005] [award of $375,000 for past pain and suffering and $1,000,000 for future pain and suffering was reduced on appeal to $250,000 for past pain and suffering and $250,000 for future pain and suffering where the plaintiff suffered a patella injury and would require surgeries due to degenerative changes but he had a functional, if imperfect, patella]; Semple v New York City Tr. Auth., 301 AD2d 514 [2003] [jury award of $134,000 for past pain and suffering and $95,000 for future pain and suffering was affirmed on appeal for 60-year-old plaintiff who suffered torn meniscus and possible tear of the medial collateral ligament]; Myers v Schaffer Grocery Corp., 281 AD2d 156 [2001] [order setting aside the verdict unless the defendant stipulated to increase the awards for past and future pain and suffering from $0 and $0 to $300,000 and $120,000, respectively, was affirmed on appeal where the 33-year-old plaintiff suffered a tear in the cruciate ligament of his knee and underwent several months of physical therapy leaving him unable to participate in strenuous sporting activities]; Juliano v Prudential Sec., 287 AD2d 260 [2001] [aggregate award of $68,000 for past and future pain and suffering increased on appeal to an aggregate sum of $200,000 for a medial meniscus tear of the right knee which required two arthroscopic surgeries]).

Interest shall run from March 24, 2008, the date of the decision establishing liability (see Love v State of New York, 78 NY2d 540 [1991]; CPLR § 5002). All trial motions not heretofore decided are deemed denied.

To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims § 11-a (2).


December 8, 2008
Saratoga Springs, New York

Judge of the Court of Claims