KROLL v. THE STATE OF NEW YORK, #2008-016-061, Claim No. 108261
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Kaston, Aberle & Levineby: Joel L. Levine, Esq.
Andrew M. Cuomo, Attorney
Generalby: Cheryl Rameau, AAG
October 31, 2008
See also (multicaptioned
This is the decision following the damages trial of Elizabeth Kroll’s
claim that arose from her fall on the Staten Island premises of
defendant’s Office of Mental Retardation and Developmental Disabilities
(OMRDD). The State had been found 25% liable by this Court ’s Decision
dated April 17, 2007.
Ms. Kroll was an engineer employed by the Dormitory Authority; her title was
field representative, and she had the responsibility for inspecting and
overseeing construction that the Authority was performing for OMRDD. On
September 6, 2000, while walking on a pathway, claimant’s foot got caught
in a defect or hole in the concrete and she fell forward.
Kroll experienced “tremendous pain” in her right knee and was taken
by ambulance to a nearby hospital emergency room. When released from the
hospital, she was referred to an orthopedist, a Dr. Tajari. Kroll told him that
her right knee was painful and that she could not stand on her left foot because
of her ankle. Tajari took an x-ray, and according to claimant, she was advised
that she would need knee surgery “right away,” and that the ankle
would probably require surgery as well.
Kroll was off from work for a few weeks, returning in early October through
February of 2001, stayed out until about the end of the year, or early 2002, and
stopped working permanently in June of 2002. I conclude that all of the time
Kroll missed from her job, one which required that she be physically active, was
a consequence of her September 6, 2000 injury.
Kroll did not have surgery right after the injury; rather, she next saw Dr.
Stephen Nicholas in December of 2000, who also recommended immediate surgery on
the right knee. Kroll finally had arthroscopic surgery on her right knee as an
outpatient on March 30, 2001. Two months later, on May 25, Dr. Nicholas
performed arthroscopic surgery on her left ankle. (Cl exh 3).
Ms. Kroll recently, in September of 2007, had a second arthroscopic surgery on
her right knee. Claimant testified that she needed the procedure because of
“tremendous pain [in the right knee] and the knee was locking.”
Defendant objected to this testimony because it did not learn of it until Kroll
took the stand. This Court had reserved on this matter at trial, but a review
of the medical records fails to turn up a reference thereto, and lacking any
other notice and no sufficient explanation from claimant, the matter is
precluded and will not be considered as part of this decision.
On November 26, 2001, Kroll had her first appointment with a neurologist, Dr.
Michael Bykofsky. Claimant described her complaints at the time as,
“tremendous pain in my left foot. I would say I get cramps, heat, cold . .
. The orthopedist [had] recommended that I go to [a] neurologist.”
Dr. Bykofsky, who still treats claimant, testified that he has seen her about
once every one or two months over the last six and one half years. He testified
Her initial complaints were concerning especially the left ankle and foot area
and the left lower extremity . . . [s]he had developed some swelling in the area
. . . [and] the skin of the area became extremely sensitive to touch . . . Her
foot would feel hot and cold. She also complained of weakness in the foot.
Decreased sensation was especially more in the large left toe and on the medial
side of the foot.
Kroll was undergoing a course of physical therapy with Dr. Gary Inwald, D.O.
Ms. Kroll has a brace on her left foot prescribed and fitted by Dr. Inwald which
she said she has been wearing every day for five years - - beginning then, some
two or three years after the date of the injury.
Dr. Bykofsky last saw claimant on April 22, 2008. Kroll complained that her
left foot was becoming more numb. The foot remained swollen, and was sensitive
to covering by a sheet when claimant tried to sleep. She reported numbness in
the sole and continuing difficulty with walking and using the left foot; she
therefore, noted Bykofsky, overuses her right leg. Kroll also complained of
The top of claimant’s left shoe had a piece cut out to ease pressure on
the upper part of her foot because at one time she had an open wound on the top
of her foot, for which she said she “was in treatment about three [or]
four years . . . getting different type [s] of ointments.”
Kroll also added, “I’m very depressed.” No evidence was
offered of any treatment by a psychiatrist or other mental health care
professional. Dr. Bykofsky could not recall, or find in his chart, whether it
was he or Dr. Inwald who placed claimant on Paxil, a medication prescribed for
As a general principle, a greater injury to the proverbial thin-skulled
claimant is compensable to that greater degree, but, in any event, proximate
cause must be established. This Court does not question the truthfulness of the
evidence (received via testimony or medical records) of Ms. Kroll’s
complaints about her left foot that were neurological in nature; however,
claimant has not met her burden of proving that such was proximately caused by
her fall on the pavement.
The day of the accident, at the emergency room, Kroll was treated for her right
knee, not her left foot or ankle (cl exh 1). An x-ray of the left ankle was
taken days later on September 12, and showed no break. Dr. Bykofsky did not
provide a satisfactory explanation of how her fall at work led to the
neurological problems with her left foot. His testimony thereon lacked clarity
and credibility; for example, after noting that his patient had numbness in her
The loss of sensation [was] because of neuropathic injury to the left lower
extremity . . . Neuropathic is a peripheral type of a process where a distal
part of the extremity or other areas are injured, and a pattern is set up with
the spinal cord and the brain of abnormal sensation information processing. It
could be local. It could also involve the cord and the brain, and because of
this disruptive type of injury to the nerve, you develop pain such as she had
and loss of feeling and motor problems.
The records of Dr. Stephen Nicholas, who had performed the surgery on Ms.
Kroll’s right knee and left ankle in March and May of 2001, are in
evidence as claimant’s exhibit 3.
Dr. Nicholas’ consult note for claimant’s appointment on August 4,
2003 includes the following: “She stated that she has occasional right
knee pain after the scope, but that her main problem is left ankle foot drop . .
. I am not satisfied that the cause of this has been obtained .”
In Dr. Bykofsky’s chart, there is a June 29, 2004 consult done at his
request by Dr. Richard Raynor, clinical professor of neurosurgery at the New
York University School of Medicine. 
Dr. Raynor did note that Kroll was in “her usual state of health”
until she fell and injured her right knee and left ankle, nearly three years
later the cause and result are unclear - - Raynor recommends she see someone
else: “There appears to be a compromise of the left peroneal nerve in the
region of the ankle . . . I would suggest evaluation by someone who specializes
in peripheral nerve surgery.”
Pain and Suffering
Before September 6, 2000, Ms. Kroll skied, ran and walked. Her good health
before the accident is not in dispute. Now because of the injury, claimant
testified that “I sit [down] all day.” She attributes her weight
gain to this lack of activity, she testified that at the time of the accident
she weighed 155 or 158 pounds, but currently was at 190 pounds. I do not
question that because of the subject injury at OMRDD, Kroll can no longer ski or
run. Her walking is diminished, but not so much as claimant attributes to
neurological problems. She underwent two surgeries. Her enjoyment of life was
For the eight years of past pain and suffering, claimant is entitled to
$200,000. As for the future, Ms. Kroll’s life expectancy is 23
and, I conclude that her damages for
that period amount to $450,000.
Lost Wages and Medical Expenses
Ms. Kroll testified, without contradiction, that in September of 2000 her
annual salary was $77,000. The latest W-2 we have in evidence is for calendar
year 1999, which shows a salary of $73,000 (cl exh 5), a figure not inconsistent
with a salary 5% higher the following year. No evidence was received relating
to what her earnings would have been subsequent to 2000, and the $77,000 salary
will be used to calculate lost earnings.
Born in July of 1947, Kroll was 53 years of age at the time of her accident;
the actuarial table shows an average expectation of nine more years of work
But to this trier of fact (see PJI 2:290),
Kroll was a trained professional, enjoyed her work, and at the time, was a
healthy and vigorous individual. I conclude that claimant would have worked 12
more years until the age of 65. In sum, that is eight years of past employment,
less approximately one year in the intermittent stretches she returned to work,
or seven times $77,000 amounting to $539,000, and four years of future lost
earnings, or $308,000.
No request has been made for past medical expenses. Dr. Bykofsky testified
that in the future, they would annually amount to the following for the
remainder of claimant’s life :
- physiatric, $3,000 to 4,000;
- neurological, including the neurologist and medication, $2,000 to $2,500 per
- psychiatric, $2,000 to 3,000.
Physiatry goes to the rehabilitation and conditioning of Kroll’s
ambulatory function, which I have found is impaired. With a life expectancy of
23 years, the total is $69,000, using the lower figure from Dr. Bykofsky’s
The request for neurological special damages must be denied given the failure
to show a causal link therefor. Finally, there is no evidence that at any time
in the eight-year period between her accident and the damages portion of the
trial, Ms. Kroll sought any psychiatric help (or that of any other mental health
Claimant’s past damages amount to $200,000 in pain and suffering, plus
$539,000 in lost wages for a total of $739,000 in past damages. By the
Court’s liability decision, defendant is responsible for 25% of this
amount, or $184,750.
Claimant’s future damages amount to $450,000 in pain and suffering, plus
$308,000 in future lost earnings, plus $69,000 in medical expenses for a total
of $827,000 in future damages. Defendant is responsible for 25% of this amount,
The Clerk of the Court is directed to enter judgment for claimant Elizabeth
Kroll in the amount of $391,500 with interest at the statutory rate from April
17, 2007. The filing fee paid by claimant shall be recovered pursuant to
subdivision two of §11-a of the Court of Claims Act.
October 31, 2008
York, New York
HON. ALAN C. MARIN
Judge of the Court of Claims
. Claimant was in an automobile accident in
June of 2002, injured her neck and had seven to ten days of what Kroll described
as therapy. She testified that she then felt better, and her neck has not
caused any discomfort since. Such will not be an issue here.
. Raynor’s letter to Bykofsky, dated
June 30, 2004, claimant’s exhibit 6.
.Two other neurologists used the word
“likely” in their consult reports, which does not tend to assist
claimant in proving proximate cause as to her neurological complaints. Dr.
Christine Cristafulli, on March 24, 2004 ran Kroll through a number of tests and
concluded, “Severe left peroneal neuropathy, likely in the distal left
lower leg.” An undated consult from Dr. Joseph J. Moreira concluded that
there was “the presence of a left peroneal neuropathy affecting both
motor and sensory fibers most likely at or around the ankle.” (Cl exh 6).
. There are no grounds in the record to depart
from the actuarial figures of PJI
Vol 1B, Appendix A, Table 3.
Vol 1B, Appendix B, Table