New York State Court of Claims

New York State Court of Claims

KROLL v. THE STATE OF NEW YORK, #2008-016-061, Claim No. 108261


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:
Kaston, Aberle & Levineby: Joel L. Levine, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney Generalby: Cheryl Rameau, AAG
Third-party defendant’s attorney:

Signature date:
October 31, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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.[1]

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 that:
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 back pain.

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 depression.
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 left foot:
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. [2] While 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.”[3]

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 significantly impaired.

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 years,[4] 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 .[5] 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 year; and

- 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 range.

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 provider).
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, or $206,750.

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
New York, New York

Judge of the Court of Claims

[1]. 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.
[2]. Raynor’s letter to Bykofsky, dated June 30, 2004, claimant’s exhibit 6.
[3].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).
[4]. There are no grounds in the record to depart from the actuarial figures of PJI Vol 1B, Appendix A, Table 3.
[5]. PJI Vol 1B, Appendix B, Table 8.