New York State Court of Claims

New York State Court of Claims

McKEE v. THE STATE OF NEW YORK, #2009-009-198, Claim No. 109924


Claimant was awarded the sum of $38,951.70 as damages for personal injuries suffered by her when she fell while exiting a building on the SUNY Cortland Campus.

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: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
March 25, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


In a decision on liability filed October 29, 2007, this Court found the defendant State of New York 60% liable for personal injuries suffered by claimant when she fell on August 24, 2004 as she exited Neubig Hall, a building on the campus of the State University of New York at Cortland (SUNY Cortland). A trial limited to this issue of claimant’s damages has now been held, and this decision addresses that issue.

Claimant, who was born on February 1, 1981, testified at this trial. She was 23 years of age at the time of the incident, and testified that she was a full-time student at SUNY Cortland, and was also employed on a part-time basis at Home Depot. She further testified that subsequent to the incident, she received a degree in therapeutic recreation from SUNY Cortland in 2005. Following graduation, she was employed full-time as a recreation assistant at the Iroquois Nursing Home from October 2005 through March 2006, and is now employed full-time at Broome Developmental Center as a recreation therapist.

Claimant testified that when she fell, she suffered immediate and severe pain to her left knee and leg, and endured further extreme pain during her examination and treatment in the emergency room at Cortland Memorial Hospital, where she was taken following her fall.

For a period of approximately three months, her left leg was immobilized with a removable splint from just below her hip down to the lower portion of her leg. During this time, claimant was unable to walk normally, she was unable to climb stairs without assistance, she was unable to drive, and could not perform any of her usual household duties or participate in any recreational activities. She testified that during this time, she experienced constant pain in her left leg. Claimant was prescribed Tylenol with codeine for pain, and she also took an anti-inflammatory drug to reduce swelling and relieve pain.

Claimant testified that upon her return to employment, she continued to experience pain in her leg, and she was unable to stand for any long periods of time. She had to, therefore, take frequent breaks. She testified that she continues to have considerable pain in her leg and knee in her current employment at Broome Development Center. Furthermore, she also testified, due to the limitations caused by her injury, she is prevented from advancing to the next available level (and higher pay grade) in her field of employment.

In addition to the restrictions in her employment, claimant testified that the pain which she continues to experience from her injury has prevented her from engaging in recreational activities such as rollerblading and long walks.

Michael T. Clarke, M.D., an orthopedist, testified as claimant’s treating physician and medical expert.[1] Dr. Clarke testified that he first examined claimant on September 1, 2004, approximately one week after she fell. Based upon his review of the x-ray films from Cortland Memorial Hospital (Exhibits 6 through 8), Dr. Clarke testified that claimant had sustained a comminuted fracture of her left knee extending from the anterior to the posterior of the interior pole of her left patella. Upon examination, Dr. Clarke found that the fracture was non-displaced and that the knee mechanism had not been disrupted. Although claimant reported tenderness in this area, she did not have significant fluid within the joint, and with a splint, she could bear weight on her left leg.

Dr. Clarke continued to treat claimant, and during his examination on October 13, 2004, Dr. Clarke determined that the fracture had completely healed in anatomic alignment. Dr. Clarke instructed claimant on home exercises that would help rehabilitate the knee, and recommended physical therapy.

Based upon his treatment during this time, Dr. Clarke determined that claimant was totally disabled from employment for the period of August 24, 2004 through November 13, 2004.

Since that time, Dr. Clarke has not treated claimant for this injury, and did not conduct any further examination of claimant until May, 2008, a short time prior to this damages trial. During that examination, Dr. Clarke noted that claimant had a normal gait, full extension, and flexion of 140% (considered to be within the normal range) and showed no signs of instability in her leg. He did not observe any indication of inflammation or any evidence of fluid in her knee, and did not find any significant patellar malfunction or instability. At that time, claimant did relate to Dr. Clarke that she continued to experience pain in her knee and that she had difficulty performing such activities as squatting, walking up and down stairs, and rising from a seated to a standing position.

Dr. Clarke further testified that claimant does have some preexisting congenital conditions of valgus (“knock-knees”), patellar maltracking, and flat feet, and that these conditions can themselves cause pain. However, it was his opinion that in this case, these conditions may have exacerbated claimant’s pain, but it is her fall, which occurred in 2004, which was the actual cause of the pain which claimant was, and still is, suffering. Since claimant still registers complaints of pain after four years, Dr. Clarke recommended further treatment, including physical therapy, a glucosamine supplement, and anti-inflammatory medication on an as-needed basis.

John Cambareri, M.D., an orthopedist and orthopedic surgeon, was qualified as an expert and offered testimony on behalf of the defendant. Dr. Cambareri testified that he conducted an independent medical examination of claimant on June 19, 2008. At that time, claimant complained of pain in her left knee, which became worse with extended walking and going up or down stairs.

Dr. Cambareri testified that during his examination, claimant walked with a normal gait, had full extension of her knee, and also had normal range of motion. Claimant was able to fully extend her leg and walk normally, without any limp. Dr. Cambareri did not find any evidence of fluid within the knee or any nerve damage. He did note that claimant was “knock-kneed” and that she had flat feet.

Based on his examination, Dr. Cambareri concluded that claimant had suffered a non-displaced fracture of the patella which had healed completely, and that she had regained normal function of her knee during the three months that she was treated by Dr. Clarke. He further testified that the non-displaced fracture suffered by claimant normally heals completely, without any future problems or pain. Although he could not state it with complete certainty, he did not expect claimant to develop any post-traumatic arthritis related to this injury.

Although the fracture necessarily caused the formation of scar tissue in the knee, Dr. Cambareri did not believe that claimant would suffer any permanent disability as a result of this fracture.

Based on his examination, Dr. Cambareri concluded that claimant’s complaints of pain in 2008 were not consistent with a normal recovery from this kind of injury, or with his objective findings from his examination. He concluded, to a reasonable degree of medical certainty, that claimant had recovered completely from this knee fracture, that there was no indication of any permanent disability and no need for any further treatment.
Based on the medical records submitted at trial and the testimony of both Dr. Clarke and Dr. Cambareri, it is obvious to this Court that claimant suffered a non-displaced, comminuted left patellar pole fracture. Both doctors agreed that this was a very painful injury, and further agreed that as a result of this injury, claimant was immobilized and under a total disability for approximately three months. The Court accepts Dr. Clarke’s testimony that claimant was fully disabled from work for the period of August 24, 2004 (the date of the accident) through November 13, 2004. The Court further finds that during this period, claimant was employed on a part-time basis at Home Depot as a cashier.

Although there was testimony from both physicians relating to claimant’s preexisting valgus (“knock-knees”) and her flat feet, the Court finds (as it stated at the trial) that there is no evidence that these preexisting conditions were a cause of the pain suffered by claimant.

During this three-month period of disability, not only was claimant unable to work, she was also unable to perform any of her usual household duties, nor was she able to participate in any of her preferred recreational activities such as rollerblading and walking.

The two physicians, however, differed somewhat in their opinion as to whether claimant suffered any permanent injury to her knee and whether she could expect to suffer any pain or suffering in the future as a result of the injury. Dr. Cambareri, as noted, concluded that claimant had completely recovered from her fracture without any future need for medical treatment, which was normal with this type of fracture. Dr. Clarke, on the other hand, stated that claimant’s condition has persisted for approximately four years, and that she is likely to experience pain and require further treatment on a long-term basis.

The Court finds it significant that no evidence was introduced to suggest that claimant had sought or received any medical treatment, prior to trial, since November 2004, when she was last seen by Dr. Clarke.[2] Additionally, there was no evidence that claimant had participated in physical therapy at any time during the four-year period from August, 2004 to the date of this trial, or any indication that she was taking any prescribed medication. Accordingly, although it is not insensitive to the complaints of pain made by claimant, the Court finds that such complaints must be relatively minor, since claimant has not felt the need to seek further medical treatment or undertake a regimen of physical therapy.[3]

Based on the foregoing, with emphasis upon the Court’s findings that claimant suffered considerable pain from the fracture in her knee, and was incapacitated and totally disabled from work for the period of August 24, 2004 through November 13, 2004, this Court concludes that claimant has suffered damages in the amount of $50,000.00 for past pain and suffering.

Although claimant testified to the pain she continues to experience in her knee resulting from this accident, she is not currently undergoing any medical treatment for this pain, nor is there any evidence that she received any medical treatment since November 2004 for this injury. The Court, however, does accept claimant’s testimony that this injury prevents her from participating in certain recreational activities, and that she continues to experience some pain and limitations from the injury to her knee. As of the date of this trial, claimant was 27 years of age, with a life expectancy of 53.4 years[4]. Accordingly, the Court hereby determines that $10,000.00 is an appropriate award for future pain and suffering.

There is no dispute that claimant was totally disabled from employment from August 24, 2004 through November 13, 2004, or approximately 12 weeks. Evidence established that claimant was being paid at the rate of $8.50 per hour at the time of the accident, and was averaging approximately 30 to 34 hours per week. Based upon an average work week of 32 hours, therefore, claimant suffered a pay loss in wages of $3,264.00 during this time of total disability.

Claimant also contends that due to the continued pain in her knee, and the limitations that prevent her from standing for long periods of time or from easily rising from a seated to a standing position, she was unable to advance in her employment at Home Depot, and that these conditions continue to restrict her from advancing in her current employment as a recreational therapist at Broome Developmental Center. The Court finds that such a contention is purely speculative and therefore makes no award for any loss of earnings capacity.

As set forth above, claimant was not covered by medical insurance prior to her current employment, and medical bills totaling $1,655.50 were admitted into evidence at trial (Exhibits 11 through 13). Defendant contends that claimant could possibly have been covered by medical insurance through her parents at the time of the fall, and that such coverage would then have constituted a collateral source against any award for out-of-pocket medical expenses. However, the fact remains that claimant was not covered by health insurance at the time of this accident. Furthermore, there is no credible evidence establishing that claimant was eligible for coverage under a policy of medical insurance available to one or both of her parents, or any evidence as to the cost of this coverage to claimant, assuming that such coverage was in fact available. The Court therefore concludes that defendant’s argument requesting a collateral source offset is purely speculative. Accordingly, the total amount of medical costs, in the amount of $1655.50, constitutes an appropriate award.

Therefore, based on the foregoing, this Court makes a total award of $64,919.50, covering past and future pain and suffering, lost wages, and reimbursement of medical expenses.

As stated at the outset of this decision, this Court, in its prior decision on liability, found the State 60% liable for claimant’s injuries. As a result, claimant is entitled to an award of $38,951.70, and the Clerk of the Court of Claims is hereby directed to enter judgment in this amount in favor of claimant Lindsay McKee.

The amount awarded herein shall carry interest at the rate of 9% per year from the date of the determination of liability on October 1, 2007 (Dingle v Prudential Prop. & Cas. Ins. Co., 85 NY2d 657; Love v State of New York, 78 NY2d 540). Additionally, to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act, § 11-a(2).


March 25, 2009
Syracuse, New York

Judge of the Court of Claims

[1]. The testimony of Dr. Clarke was taken prior to trial, on July 14, 2008. A video (DVD) of his testimony was received into evidence at trial (Exhibit 1) as well as a transcript of his testimony (Exhibit 2).
[2]. The Court finds that the May 19, 2008 appointment with Dr. Clarke was not intended for medical treatment per se, but rather was to allow Dr. Clarke the opportunity to examine claimant prior to trial so that he would be able to provide a current opinion as to claimant’s condition.
[3]. Although there was an indication that claimant did not initially seek physical therapy immediately after her accident due to a lack of medical insurance coverage, testimony at trial established that claimant now has medical insurance benefits through her current employment at Broome Developmental Center.
[4]. Life Expectancy Tables for Women in the United States (PJI 3d [2009], Vol. 1B, Appendix A, Table 3 at 1681).