IRIZARRY v. THE STATE OF NEW YORK, #2009-009-199, Claim No. 108986
The Court awarded the sum of $80,000.00 for past and future pain and suffering
for personal injuries suffered by claimant in an inmate-on-inmate assault for
which the State was previously found 100% liable.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
NICHOLAS V. MIDEY JR.
GARY E. DIVIS, ESQ.
HON. ANDREW M. CUOMO
Michael R. O’Neill, Esq.,
March 24, 2009
See also (multicaptioned
In a decision on liability dated October 1, 2007, this Court found the
defendant State of New York 100% liable for personal injuries suffered by
claimant resulting from an inmate-on-inmate assault occurring on July 31, 2003.
On that date, claimant was an inmate in the custody of the New York State
Department of Correctional Services and was housed at Auburn Correctional
Facility (Auburn) when he was assaulted by another inmate. In its liability
decision, this Court found that the assault against claimant, which occurred in
the main exercise yard at Auburn, was reasonably foreseeable and a direct result
of the State’s failure to take appropriate steps that could have prevented
A trial limited to the issue of the damages suffered by claimant in this
assault was held on September 15, 2008, and this decision addresses that issue.
Claimant, who was born on August 9, 1971, was 37 years old at the time of
trial, with a life expectancy of 39 years
Claimant testified that twice during the assault, he was punched in his right
eye by his assailant (Inmate Hortas), and that the force of the blows knocked
him into a soccer net in the exercise yard at Auburn. As he was falling, his
left hand became caught in the net, and he suffered a dislocation of his left
ring finger, which was bent into an “L” shape at the lowest joint.
Claimant was transported that same day to Auburn Memorial Hospital for
treatment of these injuries. X-rays were taken, and claimant was diagnosed with
a finger dislocation of the PIP (proximal interphalageal) joint. The finger was
reduced (brought back to normal position) and the joint was splinted. Claimant
testified that his right eye was also examined, and that he had no vision in
that eye as a result of the assault.
Claimant further testified that approximately two days later, he was
transferred to Upstate Medical Center at State University Hospital (Upstate) in
Syracuse, New York for further treatment of his injuries. While at Upstate, the
splint on his left hand was removed and, claimant testified he was advised that
his finger would always be swollen and that he would eventually develop
Claimant’s right eye was also examined at Upstate, at which time he was
still unable to read an eye chart. Eye drops were prescribed for treatment, and
gauze was placed over the eye. Claimant was told by the ophthalmologist who
examined him that he was lucky to have any vision at all based on the severity
of the injury.
Upon his return to Auburn Correctional Facility, claimant was given ibuprofen
and “buddy tape” for treatment of the injury to his left finger.
The “buddy tape” allowed claimant to tape his injured finger to an
adjoining finger for additional support. At trial, claimant, who is still
incarcerated, testified that he continues to periodically complain of stiffness
and swelling in his left ring finger.
With regard to his eye injury, claimant testified that he was still
experiencing severe eye pain (on the level of 10 on a 0 to 10 scale) upon his
return to Auburn Correctional Facility. He was suffering from blurred vision
and was diagnosed with traumatic uveitis (an inflammation of the uvea).
Claimant further testified that his vision started to return approximately one
month after the incident, but that in his opinion, he has lost more than 50% of
the vision in that eye. At the time of trial, claimant testified that he still
did not have any peripheral vision on his right side.
Claimant testified that as a result of these injuries, he was unable to perform
certain jobs offered by the Department of Correctional Services within the
facility. Specifically, claimant is a barber, but he is unable to give haircuts
due to his lack of peripheral vision. Additionally, claimant testified that he
had difficulty in handling the electric clippers and scissors required for his
barbering job due to the swelling in his left ring finger, combined with
limitations caused by a prior injury to his right hand. Claimant also testified
that he is unable to participate in many sporting activities that he enjoyed
prior to the assault.
Claimant also testified that as a result of this assault, he sought mental
health counseling due to his continuous fear that he may be subjected to another
Jerome A. Davis, M.D., testified as a medical expert on behalf of the claimant.
Based upon his review of the medical records and his two separate examinations
of the claimant, Dr. Davis concluded that both injuries were causally related to
the assault against claimant on July 31, 2003.
With regard to the dislocation of claimant’s left ring finger, Dr. Davis
observed that claimant still has trouble grasping, and that he has a limited
range of movement at the PIP joint of this finger due to swelling and deviation
of the joint. As a result, Dr. Davis concluded that claimant does continue to
suffer a certain amount of discomfort in that finger, that the injury is
permanent, and that corrective surgery would not be able to repair the injury to
his left ring finger. Dr. Davis testified that, in his opinion, claimant has
suffered a 50% loss of use of the PIP joint in this finger. Dr. Davis also
testified that when considering the injury to his left ring finger in
conjunction with the prior injury to claimant’s right hand, he concluded
that claimant had a combined 50% loss of functional impairment to his hands.
As previously stated, Dr. Davis also testified with regard to the eye injury
suffered by claimant and concluded that the vitreous hemorrhage and traumatic
uveitis suffered by claimant were a direct and proximate result of the assault
against him by Inmate Hortas on July 31, 2003. Based on claimant’s
testimony, Dr. Davis concluded that it was probable that claimant has lost 50%
of vision in his right eye and that this loss of vision is permanent in nature.
The State did not produce any witnesses at this damages trial.
Upon considering the testimony of both claimant and Dr. Davis, and after the
Court’s review of the medical records entered into evidence (Exhibit 1),
it is readily apparent that the injuries to claimant’s left ring finger
and his right eye resulted directly from the assault against him by Inmate
Hortas on July 31, 2003 in which the State has previously been found 100%
With regard to the injury to claimant’s left ring finger, the undisputed
evidence established that claimant suffered a dislocation of the proximal
interphalangeal joint (PIP joint) of this finger, caused by a hyper-extension of
the finger when he caught his hand in the soccer net as he fell after being
struck by Inmate Hortas. The finger, however, was not fractured; the
dislocation was reduced, and the hand and finger were splinted. Eventually, the
finger was “buddy taped” to an adjoining finger for a period of time
following the incident.
Furthermore, the Court accepts the testimony of both claimant and Dr. Davis
that there is some degree of permanency to this injury, with swelling and the
future likelihood of arthritis developing in the joint.
Nevertheless, the Court, quite candidly, finds a dislocated finger to be a
relatively minor injury, and that claimant has not established a significant
loss of function. The Court simply does not agree with claimant’s expert
that this injury, combined with claimant’s prior right-hand injury, has
resulted in a 50% loss of use and function. There is no evidence that claimant
is currently being treated for this injury, and the medical records establish
that since mid-2004, claimant has only occasionally registered complaints of
soreness or requested “buddy tape” for his finger.
Accordingly, for this injury, the Court concludes that claimant has suffered
damages in the amount of $25,000.00 for past pain and suffering, and $5,000.00
for future pain and suffering.
With regard to the injury sustained by claimant to his right eye, the Court
again accepts claimant’s testimony and the testimony from Dr. Davis that
the vitreous hemorrhage and the traumatic uveitis were a direct result of the
punches to his eye from Inmate Hortas during the assault of July 31, 2003. For
a period of several weeks following the assault, claimant had no vision in his
right eye, but fortunately, over time, his vision returned. Medical records
establish that for approximately four months following the incident, claimant
sought medical treatment for blurred vision, “flashes”, and
“floaters” in his eye. These records also establish, however, that
by early 2004, the vitreous hemorrhage had resolved, his medication was
discontinued or reduced, and claimant had experienced a marked improvement in
Although claimant testified that he has lost 50% of his vision in his right
eye, and Dr. Davis concurred in this assessment, Dr. Davis admittedly is not
trained in ophthalmology and cannot be considered an eye specialist.
Furthermore, Dr. Davis did not conduct any independent testing in arriving at
his opinion, but drew his conclusions based solely upon the testimony of
claimant and his review of the medical records.
Although there is some evidence in these medical records that claimant’s
vision in his right eye has deteriorated since the incident, the Court notes
that claimant had been prescribed reading glasses prior to the incident. The
Court does not find sufficient expert medical testimony to establish that this
deteriorating vision is directly attributable to the incident of July 31, 2003.
Based on the foregoing, therefore, the Court finds and concludes that claimant
should be awarded the sum of $50,000.00 for past pain and suffering attributable
to the injury to his right eye, but makes no award for any future pain and
Claimant had also testified at trial that he found it necessary to seek
counseling from mental health providers for nightmares that he was suffering,
and a “constant fear” that he could not be protected by the
Department of Correctional Services. Based on his testimony alone, however, the
Court finds insufficient evidence to merit any award for mental suffering.
Claimant did not make any claim for lost wages, whether past or future.
Based on the foregoing, therefore, the Court awards claimant the total sum of
$80,000.00 ($75,000.00 for past pain and suffering, and $5,000.00 for future
pain and suffering). The Clerk of the Court of Claims is hereby directed to
enter judgment in this amount in favor of claimant.
The amount awarded herein shall carry interest at the rate of 9% per year from
the date of the determination of liability, 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).
LET JUDGMENT BE ENTERED ACCORDINGLY.
March 24, 2009
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
. Life Expectancy Tables for men in the
United States (PJI 3d , Vol 1B, Appendix A, Table 2 at 1678).