New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

On September 11, 2005, Ydaiza DeCastro fell when her shoe got stuck in a hole in front of the elevator on the fourth floor of the apartment building where she lived at 1760 Andrews Avenue in the Bronx. She fell hard and injured her knee and her back.

The building owner conceded liability for the accident but the parties could not agree on the proper amount of damages for the then 40 year old Ms. DeCastro's injuries so a damages only trial was held in June 2009.

The Bronx County jury rendered a $600,000 verdict for plaintiff's pain and suffering ($350,000 past - 2 years 9 months, $250,00 future - 37 years). The defendant argued that the amount was excessive and formally requested in a post-trial motion that the trial judge reduce the verdict. In his post-trial decision, the judge agreed with the defendant and ordered a conditional reduction to $450,000.

Plaintiff appealed and now, in DeCastro v. Andrews Plaza Housing Associates, L.P. (1st Dept. 2011), the appellate court has reinstated the jury's $600,000 verdict.

As indicated in the appeals court decision, plaintiff sustained a chondral fracture defect in the articular surface of her knee joint that required arthroscopic surgery. She also sustained herniated and bulging discs in her lumbar spine.

Steven Struhl, M.D., plaintiff's knee surgeon, testified that plaintiff sustained a traumatic lesion in an otherwise normal knee. He described the surgery he performed in which he identified damage in the trochlear groove (the concave surface where the kneecap makes contact with the femur), cleaned out loose, damaged and partially detached cartilage and performed a microfracture, a drilling procedure designed to generate new cartilage.

Despite successful surgery, Dr. Struhl opined that plaintiff will need further arthroscopic work and probably a limited arthroplasty (i.e., a partial knee replacement).

Plaintiff testified and described her limitations from the accident. She said she's been unable to continue working as a bus attendant; instead she works part-time doing light cleaning of homes. She could not squat completely or bend or put weight on her knee on the floor; nor could she move as quickly. On a personal level, she could no longer go to the park and enjoy playing with her young children, could not dance and could not wear high heels.

In reinstating the jury' $600,000 pain and suffering award, the appellate court cited three comparable cases:

1. Harris v. City of New York Health & Hospitals Corp. (1st Dept. 2008) - $650,000 for 76 year old woman who fell and sustained tears to the menisci of both knees requiring arthroscopic surgery on one.
2. Salop v. City of New York (1st Dept. 1998) - $720,000 for a man who sustained a comminuted fracture of his patella requiring open reduction internal fixation surgery and leaving him with permanent pain.
3. Sanabia v. 718 West 178th Street LLC (1st Dept. 2008) - $500,000 (reduced from $600,000) for a 57 year old man who was struck in the head by a chunk of ceiling plaster and sustained four herniated cervical discs, missed five months from work as a packager and neither had nor was expected to have surgery.

 Inside Information:

• In closing arguments, plaintiff's attorney asked the jury to award his client $625,000 while defense counsel argued that plaintiff's injury was "minimal" deserving only "modest compensation."
• The appeals court decision states that plaintiff's doctors testified  "she will require corrective back surgery;" however, there was no such testimony. Her spine surgeon, Jeffrey Klein, M.D., testified that he could not predict and did not know what future spinal treatment plaintiff will have.
• The appellate court decision also states that the trial evidence showed plaintiff sustained a torn anterior cruciate ligament (ACL) in her right knee; however, plaintiff's counsel conceded on appeal that when the knee surgery was performed the doctor visualized the ACL as normal.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On August 13, 2006, George Nunez was working as part of a New York City Transit Authority crew replacing subway tracks in Brooklyn. A walkway suddenly collapsed and he fell 30 feet to the street below, causing him to sustain numerous life-altering injuries.

Nunez, 48 years old at the time of the accident, sued the City of New York and was granted summary judgment under New York's Labor Law Section 240 which protects workers from height-related accidents.

In a damages only trial, the jury awarded Mr. Nunez $9,200,000 for his pain and suffering ($3,000,000 past, $6,200,000 future). The trial judge conditionally reduced the award to $5,500,000 ($1,750,00 past - 3 years, $3,750,000 future - 37 years) and that reduced sum has now been affirmed by the appellate court in Nunez v. City of New York (2d Dept. 2011).

Unfortunately, the appellate court failed to explain why the jury's verdict should be reduced (other than its reference to the boilerplate language from CPLR 5501 that the figure set by the trial judge "did not deviate from what would be reasonable compensation"). Additionally, the court did not reveal any of the injuries sustained by Mr. Nunez.

We have uncovered the details as to Mr. Nunez's massive injuries, including:

• Traumatic brain injury (TBI), with loss of consciousness, hemorrhage to his frontal lobe, hygromas and a temporal bone fracture
• Bilateral wrist fractures - each with dislocation of the scaphoid lunates requiring open reduction internal fixation surgeries that failed, hardware removal and fusion surgery (arthrodesis) with dorsal plates (illustrated here) and more surgery planned
• Pelvic fractures (six) - bilateral inferior pubic rami and superior ramus on one side
• Facial fractures - orbit, cheek and mandible, requiring surgery to place metal plates on the side of his face

After two and a half months at Bellevue Hospital, Mr. Nunez was discharged in a wheelchair and transferred to a rehabilitation center where he was treated for an additional month.

Almost three years after the accident, Mr. Nunez testified that he mainly just sat home watching television and was in constant pain at all of his fracture sites.  His wife testified that since the accident he was mentally slow, often distracted and suffered panic attacks. While he regained the ability to walk, she noted that her husband could not do many everyday tasks such as buttoning his shirt, opening a can or playing with their young children.

As to the brain injuries, there was testimony from plaintiff's expert neuropsychologist, Marcia Knight, Ph.D., who examined Nunez over a two day period one year after the accident. She concluded that he was left with a significant neurocognitive disorder involving problems with attention and processing speed, and disturbance of executive functioning in terms of planning and higher thinking. She also diagnosed Mr. Nunez with residual post-concussive disorder (causing problems with sleep, headaches, anxiety and depression). Finally, she noted asthenia (significant personality changes and lack of energy).

Defense expert William Head, M.D. a psychiatrist and neurologist, examined plaintiff and his medical records and concluded that Mr. Nunez had no brain injury, or any neurological or psychological impairments, and that his neurological status did not prevent him from being gainfully employed.

As to the wrist and other orthopedic injuries, plaintiff's orthopedic expert Eric Crone, M.D., opined that Mr. Nunez is permanently disabled. He explained that the wrist fusion surgeries left plaintiff without any motion at all in his wrists, bilateral wrist pain and contractures in his fingers. Dr. Crone also noted that the pelvic fractures left Nunez with progressive and permanent pain there and in his back.

Defendant's expert hand surgeon, Martin Posner, M.D., testified that as a result of the wrist fusions plaintiff should no longer have pain in his wrists and that after surgery known as a capsulectomy (to release his ligaments), plaintiff should be able to flex his fingers to a much greater degree improving his ability to grasp things.

Inside Information:

• Plaintiff's attorney asked the jury to award $5,000,000 for future pain and suffering; instead they went further, awarding $6,000,000 for the future.
• Plaintiff never sought psychiatric or psychological therapy; nor was he given a prescription for antidepressants or anti-anxiety medication.
• In reducing the loss of services award to Mrs. Nunez (from $1,500,000 to $350,000), the appellate judges cited no authoritative cases; however, they apparently rejected the applicability of two recent cases cited by plaintiff - Bissell v. Town of Amherst (4th Dept. 2008) [$1,00,000 for loss of services where spouse was paralyzed] and Villaseca v. City of New York (1st Dept. 2008) [$750,000 for loss of services where husband lost an eye].

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On November 29, 2004 at about 3:15 p.m., Rashawana Belt was on the sidewalk that abutted the eastbound side of 110th Avenue, near its intersection at Merrick Boulevard, in the Jamaica section of Queens. In a split second, her life would change unalterably when a drunk driver mounted the sidewalk, struck Rashawana and drove her into a wall causing massive injuries to the 22 year old college student.

Cars should not be driven on sidewalks!

After a trial in 2009, Ms. Belt was awarded pain and suffering damages of $15,000,000. Claiming the damages awarded were excessive, the defense successfully appealed and, in Belt v. Girgis (2d Dept. 2011), the appellate court has ordered a reduction to $5,000,000 ($2,000,000 past - 3 1/2 years, $3,000,000 future - 10 years).

Here are the details of the injuries sustained by Ms. Belt::

• traumatic brain injuries - cerebral concussion, temporal bone fracture, intracranial hemorrhage and frontal lobe hematoma
• displaced transverse femur fracture
• pelvic fracture
• ankle fracture with significant scarring
• severe clavicle fracture

Her injuries left Rashawana hospitalized for five months during which time she was in a coma for four weeks, underwent a tracheostomy, and had her femur fracture repaired via open reduction with internal fixation using an intramedullary rod.

Unfortunately, plaintiff was left unable to walk without a cane, with a permanent palsy of her face and permanent memory loss. At trial, it was shown that she functioned at a grade school level, was severely incapacitated and could not return to school or her part-time job as an office assistant.

In reducing the verdict from $15,000,000 to $5,000,000, the appellate judges cited and relied upon several prior relevant decisions:

• Coque v. Wildflower Estates Developers, Inc. (2d Dept. 2008) - $4,300,000 (increased from $1,750,000) for a 31 year old who sustained a burst fracture of his thoracic spine leaving him paralyzed from the waist down, incontinent and requiring self-catheterization six times a day.
• Cintron v. New York City Transit Authority (1st Dept. 2008) - $4,750,000 (increased from $2,500,000) for a 14 year old who sustained multiple skull fractures requiring surgery (and  a hip fracture). He was left with cognitive impairments such as diminished sensory skills in his hand and his visual-spatial thinking but by the time of trial was able to get a high school diploma and work as a carpenter.
• Chelli v. Banle Associates, LLC (2d Dept. 2005) - $3,500,000 (reduced from $4,500,000) for a 38 year old who sustained compound depressed skull and highly comminuted hand fractures requiring a craniotomy and open reduction internal fixation hand surgery leaving him with traumatic brain injuries including severe linguistic defects, bilateral hemiparesis and unable to walk without an ankle foot arthrosis and a cane.
• Reed v. City of New York (1st Dept. 2003) - $5,000,000 affirmed for a 43 year old who sustained multiple skull fractures, a subdural hematoma and occipital contusions causing permanent brain damage that left her demented, with a complete loss of olfactory sense and unable to lie down (requiring her to sleep in a sitting-up position)

Inside Information:

• A witness reported that the driver continued to apply the car's accelerator pedal after the vehicle had stopped and pinned Belt, despite Belt's screams and the witness's pleas.
• The  driver was imprisoned as a result of the drunk driving incident and he did not attend the trial.

• Email This
• Print
• Comments
• Trackbacks
• Share Link