In 2021 and twice this year, New York’s appellate courts issued a total of four decisions in shoulder injury cases that addressed the reasonableness of the damages awarded at the trial in each case.

Here are summaries of those cases (all of which are discussed in detail in articles we published here at New York Injury Cases Blog at about the time the decisions were issued).


 $800,000 Affirmed for 54 Year Old Woman in Bus Crash; Henry v. New Jersey Transit Corp., 195 A.D.3d 444 (1st Dept. 2021)

Kathleen Henry was a standing passenger in a New Jersey Transit Corporation bus that rear-ended another vehicle. Ms. Henry, then 54 years old, was thrown to the floor and injured her shoulder. In her ensuing lawsuit against the bus driver and owner, Ms. Henry was granted summary judgement as to liability and the matter proceeded to a trial on damages. The Manhattan jury awarded pain and suffering damages in the sum of $800,000 ($400,000 past – four years, $400,000 future – 21 years). Both the trial court judge and the appellate division affirmed the awards as reasonable.

Plaintiff sustained a three-part proximal humerus fracture dislocation requiring emergent open reduction internal fixation surgery with the insertion of a plate and screws. She underwent a second surgery (arthroscopic) 10 months later – subacromial decompression, debridement of glenohumeral joint and rotator cuff. She underwent one year of physical therapy, had a significant scar and claimed continuing and permanent pain, decreased rotator cuff strength and decreased range of motion.

Defendants argued that the awards were excessive claiming that plaintiff made a good recovery and her ongoing disabilities were minor and not permanent.


$550,000 for 46 Year Old Man in Car Crash with Torn Labrum and Post-Traumatic Arthritis; Destino v. State of New York, 203 A.D.3d 1598 (4th Dept. 2022)

Ralph Destino was involved in a motor vehicle crash in which his vehicle collided with a state trooper’s vehicle at a T intersection in Niagara County. Mr. Destino sustained shoulder injuries. In the ensuing lawsuit, the Court of Claims judge determined that the trooper, who’d been on his way to provide backup to a domestic situation with firearms present, was involved in an emergency operation as defined by Vehicle and Traffic Law Section 1104 and, as such, liability against the state could only be imposed if his conduct rose to the level of recklessness.

After hearing testimony from both drivers and others, the judge issued a decision holding that the trooper demonstrated reckless disregard for the safety of others based upon his continued rate of high speed as he approached the intersection on wet pavement in dense fog and for his failure to stop and be certain that the intersection was clear before turning left. The judge also found however, that the claimant was comparatively negligent because he was going too fast under the circumstances. The judge concluded that liability should be apportioned between the parties with 75% liability against the state and 25% liability against the claimant.

A separate damages only trial was held following which the judge determined that the claimant, 46 years old at the time of the accident, was entitled to an award (before a 25% reduction for his share of liability) of pain and suffering damages in the sum of $550,000 ($300,000 past – 10 years, $250,000 future – 23 years).

Both parties appealed contending that the liability determination was not supported by a fair interpretation of the evidence. The judgment was affirmed.

Plaintiff’s injuries included (a) a torn labrum in his shoulder causing pain and significant limitations and requiring arthroscopic surgery to repair, (b) post-traumatic arthritis of the acromioclavicular joint with the development of ganglion cysts and, (c) permanent and significant limitations of range of motion in his shoulder.


$600,000 for 47 Year Old Man in Trip and Fall Accident with Rotator Cuff and Labral Tears; Gontarek v. New York City Transit Auth., 197 A.D.3d 1036 (2d Dept. 2021)

Richard Gontarek tripped and fell between flights of the steps of the staircase at a subway station in Manhattan. Mr. Gontarek, then 47 years old, sued the transit authority claiming he fell and sustained injuries because of cracked tiles on the staircase platform. A Manhattan jury found that the transit authority was fully at fault and then they awarded plaintiff pain and suffering damages in the sum of $600,000 ($300,000 past – six and a half years, $300,000 future – 25 years). The defendant appealed arguing that the award was excessive. The appellate court affirmed the jury’s award.

Plaintiff sustained a right shoulder rotator cuff and labral tears with impingement requiring arthroscopic surgery to repair the rotator cuff and labral tears with anchor insertion. He claimed continuing pain, diminished strength, limited range of motion and need for future surgery

The defense noted that plaintiff did not seek any medical attention until six weeks after the accident (which plaintiff claimed was because he could not get an appointment to see an orthopedic surgeon until then) and argued that he recovered well within months of his surgery, has no permanent disability and is able to perform activities of daily living without limitations.

Plaintiff, a Marine Corps veteran, claimed he is significantly limited in recreational and hobby activities that were an important part of his life including Ironman training, scuba diving and bone carving.

Expert orthopedic surgeons testified for both sides. Plaintiff’s expert testified that he will develop arthritis in his shoulder and need to have it replaced (arthroplasty) within 10 years. Defendant’s expert opined that plaintiff will not need any future orthopedic treatment and certainly not any surgery.


$225,000 for 51 Year Old Man in Scaffold Fall with Labral Tear;  Joe v. State of New York, 203 A.D.3d 1258 (3d Dept. 2022)

Byung Choon Joe was in the course of his employment as an asbestos removal worker when he fell six feet from a scaffold at a state office building in Albany. Mr. Joe sued the State of New York claiming the scaffold was defective and that as a result of his fall he sustained injuries to his head, spine, right shoulder, both elbows and his left wrist.

After summary judgment on liability under Labor Law Section 240 was granted in claimant’s favor, the case proceeded to a trial on damages only. The Court of Claims judge awarded pain and suffering damages in the sum of $225,000 (all past – 6 years, 8 months). Mr. Joe, 51 years old at the time of his accident, appealed arguing that the pain and suffering damages award was inadequate; however, the appellate court affirmed the award.

Plaintiff claimed he sustained the following injuries: (a) cervical spine herniations and radiculopathy requiring discectomies and arthrodesis (fusion surgery) at C5-6 and C6-7, (b) lumbar spine stenosis at L3-5 requiring decompressive laminectomy and discectomy, (c) Right shoulder impingement and labral tear requiring arthroscopic surgery and (d) left wrist scaphoid nonunion and contracture adhesions requiring open reduction internal fixation surgery to reconstruct

Standing alone, the panoply of injuries and treatment claimed would likely merit a much higher pain and suffering award. Claimant, though, had significant pre-existing injuries and treatment that affected the trial judge’s award and the appellate court’s affirmance. Furthermore, the trial judge found that the injuries claimed to have suffered by reason of claimant’s fall were “grossly exaggerated, not credibly asserted and are patently unsupported by the trial evidence.” Therefore, the judge’s award was for the shoulder injury alone and, because he determined that the shoulder injury had “long since and fully resolved,” he declined to make any award at all for future pain and suffering damages.