New York State Court of Claims

New York State Court of Claims

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.

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:
Defendant’s attorney:
Attorney General
BY: Michael R. O’Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
March 24, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


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 the assault.

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[1].

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 arthritis.

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 assault.

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% liable.

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 his vision.

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 suffering.

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).


March 24, 2009
Syracuse, New York

Judge of the Court of Claims

[1]. Life Expectancy Tables for men in the United States (PJI 3d [2009], Vol 1B, Appendix A, Table 2 at 1678).