New York State Court of Claims

New York State Court of Claims
COSTELLO v. THE STATE OF NEW YORK, # 2010-031-507, Claim No. 112134


At a unified trial, Claimant established that she sustained a serious injury when a State Trooper negligently turned left in front of her vehicle. Claimant awarded $350,000.00.

Case information

UID: 2010-031-507
Claimant short name: COSTELLO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112134
Motion number(s):
Cross-motion number(s):
Claimant's attorney: WOODS OVIATT GILMAN LLP
Defendant's attorney: HON. ANDREW M. CUOMO
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 23, 2010
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


Cindie Costello ("Claimant") filed claim number 112134 on March 27, 2006. In her claim, Ms. Costello alleges that, due to Defendant's negligence, she suffered serious injuries in an automobile accident which occurred on April 2, 2004. On June 29, 2009, I granted on the record Claimant's request to increase the ad damnum clause of her claim from $250,000.00 to $400,000.00, and the claim was deemed amended as reflected in a daily report dated that same day. I conducted the unified trial of this claim on July 6 and 7, 2009. Following the trial, counsel were given the opportunity to submit post-trial memoranda.

In her direct case, Ms. Costello described the accident and her resulting injuries. According to Claimant, just before the accident, she was alone in her car and traveling south on Scottsville Road in Rochester, New York. As she approached the intersection of Scottsville Road and State Route 390, Claimant had a green light and intended to go straight through the intersection. As she entered the intersection, a New York State Trooper vehicle, driven by Trooper Daniel J. Flanigen, turned left in front of her and the two cars collided. The force of the collision pushed both vehicles into a third vehicle driven by David E. Patton.

Claimant testified that, as a result of the collision, she immediately felt pain in her neck, ribs and right knee. Claimant was taken from the scene of the accident by ambulance to Strong Memorial Hospital. At the hospital, Claimant was treated for the injuries to her neck and ribs. Although she did not seek treatment for her right knee at that time, she explained that her most pressing concern was her fear that she might have suffered a spinal cord injury. She did not, at that time, believe that the injury to her knee was serious. Within a couple of days, however, pain and swelling in her knee caused her to seek further medical treatment.

The injuries to Claimant's neck and ribs, which were diagnosed as sprains, turned out to be relatively minor. Although they caused her great discomfort initially, making such normal events as eating, sleeping and even breathing difficult and painful, they resolved within approximately seven weeks after the accident. It was the injury to her right knee that turned out the be the most severe and longest lasting.

Claimant related in her direct examination how she had previously injured her right knee and had undergone lateral retinacular release surgery in 1987. According to Claimant, however, the surgery had been a complete success and after she recovered from the procedure, she had no further problems with her knee prior to the April 2, 2004 accident.

Concerning her activities prior to the accident, Claimant described herself as a "fitness freak" and indicated that activities such as running and bicycling in fair weather and snowshoeing and nordic skiing in winter were a part of her daily routine. She stated that her participation in these activities was her way of dealing with the stresses of work and parenthood.

Claimant described how her day-to-day life has been affected by the accident and the injury to her knee. She stated that, generally, she feels good most mornings, but as the day goes on, her knee becomes more and more irritated and swollen. Claimant testified that, on most days, her knee becomes so irritated and swollen by the end of the day that she feels unable to participate in recreational activities. On the few occasions that she did attempt to return to her recreational activities, her knee became painful and swollen after running or biking only a short distance. She has, to a large extent, given up her pursuit of the recreational activities described above.

Claimant also described how her injuries have affected her at work. She has great difficulty squatting as well as going up stairs. This caused complications with her employment at Eastman Kodak Company ("Kodak") where she was, at times, required to lift items of up to 70 pounds. She indicated that she was unable to perform this aspect of her job and would routinely ask one of her coworkers to assist her. She indicated that it was this fact that convinced her to take a voluntary separation package from Kodak in 2005 when her division was moved to China.

Claimant testified that in the course of seeking relief for the daily pain and swelling of her knee, she endured a series of seven steroid injections into her knee. The hope was that the injections would reduce the inflammation in her knee and provide Claimant some relief from her symptoms. She described the injections as extremely painful. At first, the injections provided at least temporary relief, but as time went on, their efficacy diminished to the point where Claimant did not believe the benefits of the injections outweighed the risks of possible future complications caused by the steroids.

Claimant's attorney also read into the record portions of the deposition transcript of New York State Trooper Daniel J. Flanigen. Trooper Flanigen stated that he was on duty at the time of the accident, but that he was not responding to a call or other emergency. He was attempting to turn left from Scottsville Road onto State Route 390 South. He saw Claimant's vehicle but mistakenly assumed that she was also going to turn onto Route 390. He turned left in front of Claimant's vehicle and the accident ensued.

Trooper Flanigen's supervisor, Sergeant Elton Mitchell, also testified. He stated that he was responsible for monitoring the patrol activities of Trooper Flanigen. He candidly confirmed that he spoke with Trooper Flanigen shortly after the accident and that Trooper Flanigen admitted to him that he had turned left in front of Claimant's vehicle.

With regard to Defendant's negligence, the record clearly demonstrates that Trooper Flanigen simply failed to yield the right of way to Claimant. There has been no evidence of comparative negligence on Claimant's part. I find, therefore, that Defendant State of New York is 100% at fault for causing the accident.

Of course, in a claim involving an automobile accident such as this, Defendant is not liable for its negligence unless Claimant has suffered "serious injury" as defined by Section 5102(d) of the New York State Insurance Law. In this regard, I note that both Dr. David B. Spector, Claimant's expert, and Dr. William McKenzie, the expert retained by Defendant to conduct an independent medical examination ("IME") of Claimant, agreed that Claimant did suffer such a serious injury. I also note that Defendant has appropriately conceded this point in its post-trial submissions.

As to the extent of Claimant's injuries, there was little dispute between the testimony of Dr. Spector and Dr. McKenzie, both of whom were called by Claimant in her direct case. Both Doctors agreed that Claimant had fully recovered from her previous knee injury and that her current problems are the result of the injuries she sustained in the April 2, 2004 accident.

Dr. Spector testified about how the injury has diminished the proper functioning of Claimant's right knee. He indicated the presence of crepitus (an audible grinding or crunching sound) and tenderness along the medial joint line. He opined that these were ongoing symptoms directly caused by the automobile accident. He also opined that, due to the injury, Claimant had an increased chance of developing posttraumatic arthritis in the future. Currently, he believes that Claimant has reached maximum medical improvement and that she is left with a permanent loss of range of motion in her right knee that he described as from 10 degrees short of full extension to 120 degrees of flexion. This is compared to her left uninjured knee in which she has full extension and 140 degrees of flexion. He opined further that Claimant will most likely never be able to squat or kneel and that she will always have difficulty walking up steps. He believes that she will continue to suffer from the pain and swelling she experiences on most days and that, most likely, her current symptoms will never go away. Accordingly, it is unlikely that Claimant will ever be able to tolerate her pre-accident level of recreational activities.

Dr. McKenzie, the Defendant's IME doctor, testified that, based upon his examination of Claimant and the relevant medical records, Claimant had suffered a permanent consequential limitation of the use of her right knee. He noted that Claimant's neck and rib pain resolved over the first six to eight weeks after the accident. He also opined that Claimant has reached maximum medical improvement. He described how Claimant's symptoms (being generally comfortable in the morning and then getting increasingly sore as the day goes on) were consistent with the blunt trauma injuries she sustained in the accident, and he opined that she would have at least some level of pain on most days. He testified that, in his opinion, surgery would not be beneficial to Claimant. He stated that, in his experience and in the literature that he has reviewed, surgical correction is not particularly rewarding for a person with petalla-femural pain such as Claimant. Dr. McKenzie concluded by opining that, as a result of the accident, Claimant has suffered a permanent injury to her knee and is left with a mild to moderate disability.

Having carefully reviewed the evidence and the trial testimony, I find that Claimant has demonstrated that she suffered a permanent partial disability and, therefore, a "serious injury" as defined by the insurance law. I award Claimant $150,000.00 for her past pain and suffering and I award Claimant $200,000.00 for her future pain and suffering.

To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of claims Act 11-a(2). Any motions on which the Court may have previously reserved decision are hereby denied.


March 23, 2010

Rochester, New York


Judge of the Court of Claims