Mangra v Bruck

[*1] Mangra v Bruck 2016 NY Slip Op 51916(U) Decided on November 21, 2016 Supreme Court, Ulster County Fisher, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 21, 2016
Supreme Court, Ulster County

Dinesh Mangra, Plaintiff,

against

Mark D. Bruck, Defendant.



14-1315



Appearances:

Derek J. Spada, Esq.

Counsel for Plaintiff

Basch & Keegan, LLP

307 Clinton Avenue

P.O. Box 4235

Kingston, New York 12402

Matthew V. Mirabile, Esq.

Counsel for Defendant

McCabe & Mack LLP

63 Washington Street

P.O. Box 509

Poughkeepsie, New York 12602-0509
Lisa M. Fisher, J.

This is a personal injury action arising from a bicycle-vehicle collision on December 29, 2012 at approximately 12:45 PM, wherein Plaintiff sustained personal injuries to his leg, neck back, and head. The collision occurred at the intersection of Ulster Avenue and Morton Boulevard in Kingston, County of Ulster. Plaintiff asserts two causes of action for personal injuries and property damage to his bicycle. Defendant asserts several affirmative defenses, pertinently that Plaintiff did not sustain a "serious injury" pursuant to the Insurance Law. Both parties contend the other party was solely responsible for causing the collision and offer two differing narratives.

The matter was tried before this Court in a one day bench trial on December 11, 2015. Plaintiff called Luis A. Mendoza, Jr., M.D. and himself. Defendant called himself only. Defendant listed Lydia Shajenko, M.D., Ph.D. as a witness, but failed to call her at the trial. This resulted in dispute over 1) whether her independent medical examination (hereinafter "IME") report was admissible, and 2) whether Plaintiff was entitled to a missing witness charge.

Each party submitted post-trial submissions in further support of their positions which were fully submitted on April 20, 2016. The transcript was received by the Court on October 12, [*2]2016. The pleadings were not originally provided to the Court and were subsequently received on November 17, 2016.

Background/Trial Testimony

The general facts are undisputed. It was a cold day in December and starting to snow. Plaintiff was on his bicycle on his way to work at Shoprite in Kingston, New York. He was traveling along Ulster Avenue on the right side of the road against the curb. He approached the traffic light at the intersection Ulster Avenue and Morton Boulevard. Ulster Avenue became five lanes at the traffic light; two lanes in each direction and a left-turning lane from Ulster Avenue onto Morton Boulevard. The turning lane was governed by a left-hand turn arrow light. There was another set of traffic lights for the remaining lanes.

There was a pedestrian crosswalk across Morton Boulevard. This pedestrian crosswalk lead to a sidewalk extending along Ulster Avenue which included an overpass over a set of railroad tracks and ultimately into Miron Lane which fed into the parking lot of Shoprite. There was no sidewalk on the side of Morton Boulevard after turning onto it from Ulster Avenue. Down the street and on the opposite side of Morton Boulevard, there was a school.

Both parties agree that, as Plaintiff was traveling along Ulster Avenue on the right side and before he reached the traffic lights, he left the curb to cross over two lanes and into the left turn lane. The only other thing the parties agree on is that there was a collision between Plaintiff's bicycle and Defendant's pickup truck.

Plaintiff's Testimony

Plaintiff contends when he left the curb on Ulster Avenue to go into the turning lane there were no vehicles behind him. The left-hand turn light was green as he approached, but the other traffic lights were red. Plaintiff claims he entered into the turning lane and proceeded into the intersection when the left-hand turn light became yellow. He continued through the intersection and made his turn onto Morton Boulevard towards the crosswalk and ultimately the sidewalk. Plaintiff contends his bicycle was equipped with an electric turn signal which was on. He also claims to have indicated with his left arm that he was turning left.

This is when he was struck with Defendant's pickup truck from the rear and launched forward. The collision occurred in the intersection and under the traffic lights. Plaintiff landed on his left side, specifically his knee and head. He contends that he was proceeding to the sidewalk to continue along Ulster Avenue towards the Shoprite.

Defendant's Testimony

Defendant contends that he was in the left lane ("inner" lane) when he observed Plaintiff leave the curb on Ulster Avenue to go to the turning lane onto Morton Boulevard. He testified that Plaintiff was wearing a ski mask and was pulling on his mask, possibly to help him see, and looking over his left shoulder before and as he left the curb. Defendant testified there was another vehicle in the right lane (the "outer" lane) when Plaintiff left the curb to go to the turning lane onto Morton Boulevard. Defendant claims that both the other vehicle and his vehicle stopped to allow Plaintiff to cross the two lanes and go into the turning lane. Defendant also went into the turning lane and intended to turn left onto Morton Boulevard.

Defendant further contends all of the lights were red at the intersection when Plaintiff crossed into the turning lane. He claims Plaintiff was on the far side of the turning lane against the yellow line waiting at the traffic light. When the left-hand turn arrow turned green, Plaintiff made his turn and proceeded at approximately 5 MPH onto Morton Boulevard. Defendant claims he also proceeded at 5 MPH onto Morton Boulevard. Defendant testified that he did not [*3]observe any electronic signals on Plaintiff's bicycle or that Plaintiff indicated with his arm that he was turning left.

Defendant testified that Plaintiff continued down Morton Boulevard on the yellow median line in the center of the road. Defendant believed Plaintiff was going to the school down Morton Boulevard. Defendant testified that, abruptly and without looking, Plaintiff turned into Defendant's lane. Defendant testified he slammed on the brakes and came to a stop, but his pickup truck struck the rear of Plaintiff's bicycle. Defendant claims this occurred on Morton Boulevard, approximately 10 to 20 feet past the crosswalk at the intersection of Morton Boulevard and Ulster Avenue. The impact was to the front bumper on the driver's side.

Court's Finding of the Facts

The two crucial differences in the two narratives is the how the collision occurred and the location. The location being operative here, for Defendant's narrative to be correct, Plaintiff must have traveled down Morton Boulevard approximately 10 to 20 feet past the crosswalk. But Plaintiff claims the collision occurred in the intersection as he was traveling towards the sidewalk at the corner of Morton and Ulster to continue on Ulster Avenue over the overpass to Shoprite.

Upon careful review and due deliberation, as a trier of fact, the Court finds Plaintiff's testimony more credible than Defendant's testimony. Ulster Avenue was a direct route to Shoprite, whereas Morton Boulevard is a prolonged loop and roundabout detour. It simply does not make sense for Plaintiff to be in the location on Morton Boulevard when Defendant claims the collision occurred in December, when it was cold, and as it was beginning to snow. Plaintiff was not going for a joyride, but heading to work. The Court finds Plaintiff's testimony more credible that he made the left turn and proceeded to the corner to get to the sidewalk to proceed on Ulster Avenue and on the overpass directly to Shoprite. Plaintiff's presentation of his testimony was sincere and consistent which was mirrored by his body language demonstrating strong credibility, whereas Defendant's testimony was less credible because his testimony was both precarious and inconsistent, his demeanor guarded, and his overall presentation lacking the credibility and affirmation of Plaintiff.

The Court further notes that Plaintiff's testimony is that the light changed yellow which supports an inference that Defendant was rushing to meet the light when the collision occurred, which the Court accepts.Per Plaintiff's testimony, the impact was significant to launch him from the area under the traffic lights to the area near the corner of the intersection in front of the "green sign." To this extent, the Court cannot rectify some of the other testimony given by Defendant, including that he was traveling "[n]ot even five miles per hour" and Plaintiff was going "about five" when Defendant still managed to rear-end him. Said differently, the Court does not understand how a slower-moving vehicle behind a faster moving vehicle can still cause a rear-end collision. Therefore, the Court fully credits Plaintiff's narrative of this collision.

Legal Discussion

Liability

Initially, the Court notes that the Plaintiff proposes the application of the Noseworthy doctrine. (Noseworthy v City of New York, 298 NY 76 [1948].) This provides that "an amnesiac plaintiff may be held to a lesser burden of proof as to proximate cause than a party who is able to provide an account of the events" (Lindquist v County of Schoharie, 126 AD3d 1096 [3d Dept 2015]). However, the doctrine "is inapplicable where . . . the defendant has no greater access to the underlying facts than the amnesiac plaintiff" (Lindquist, 126 at 1096, citing Lynn v Lynn, 216 [*4]AD2d 194, 195 [1st Dept 1995]). While there are lapses in memory in Plaintiff's care and treatment, the Court cannot agree that there are lapses in memory as to Plaintiff's account of the happenings of this collision. His testimony was not plagued by lack of memory or recall, and actually more thorough and—as noted above—accurate then the non-amnesiac Defendant. Therefore, the Court declines to apply the Noseworthy doctrine.

Plaintiff's bill of particulars claims, inter alia, that Defendant was "following too closely" therefore violating VTL § 1129. It is well-established that "[d]rivers have a duty to exercise reasonable care under the circumstances presented and to see and respond to the conditions in the roadway within their view" (McKenna v Reale, 137 AD3d 1533, 1534 [3d Dept 2016], citing Rivera v Fritts, 136 AD3d 1249 [3d Dept 2016]; see Smith v Allen, 124 AD3d 1128, 1129 [3d Dept 2015] [noting such duty is to "avoid an accident"]). According to Defendant's testimony, there is no question that he saw Plaintiff from the point Plaintiff left the curb on Ulster Avenue, entered the turning lane, and made his turn onto Morton Boulevard. Defendant repeatedly testified he saw Plaintiff and described his clothing.

"When a driver approaches another vehicle from the rear, he or she must maintain a reasonably safe rate of speed, maintain control of the vehicle and use reasonable care to avoid colliding with the other car" (Atkinson v Safety Kleen Corp., 240 AD2d 1003, 1004 [3d Dept 1997]; see Tyson v Brecher, 212 AD2d 851, 851 [3d Dept 1995]; accord (Singh v Avis Rent A Car System, Inc., 119 AD3d 768, [2d Dept 2014]; see also VTL § 1129 [a] ["The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."]). "A driver's failure to do so, in the absence of a nonnegligent explanation, constitutes negligence as a matter of law" (Atkinson, 240 AD2d at 1004—05; see also Gifford v Consolidated Edison Corp of NY, 103 AD3d 773, 774 [2d Dept 2013]).

It can be without question that the case law, its progeny, and the statute apply to bicyclists. This collision was from the rear as evinced by the damage to Plaintiff's bicycle, damage to the front bumper of Defendant's vehicle, and the testimony from both parties herein. Defendant's nonnegligent excuse is that Plaintiff was traveling down Morton Boulevard on the center line and without warning swerved into Defendant's lane. This was rejected above based on the credibility of the parties and the route that Plaintiff would have to take to get to Shoprite which was not down Morton Boulevard. No other nonnegligent excuse is offered. There is no testimony Plaintiff stopped short or rapidly slowed down. There is no other cause of the rear end collision.

Accordingly, based on the facts as determined above and the lack of a nonnegligent excuse, the Court finds Defendant solely liable for the subject collision. The Court further finds no comparative fault on the part of the Plaintiff.

Serious Injury

Defendant claims that Plaintiff has not sustained a serious injury under the Insurance Law. Under New York's no-fault system of automobile insurance, a person injured in a motor vehicle accident may only recover damages through a court action if he or she sustained a serious injury. (See Insurance Law § 5104 [a] ["in any action . . . for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss."].) A "[s]erious injury" is defined as the following:

[A] personal injury which results in death; dismemberment; significant disfigurement; a [*5]fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. (Insurance Law § 5102 [d].)

"It is well established that to satisfy the statutory serious injury threshold, plaintiff must have sustained an injury that is identifiable by objective proof; plaintiff's subjective complaints of pain do not qualify as a serious injury within the meaning of Insurance Law § 5102(d)" (Tuna v Babendererde, 32 AD3d 574, 575 [3d Dept 2006] [citations omitted]). Therefore, Plaintiff is required to submit "competent medical evidence based upon objective medical findings and diagnostic tests to support his claim of serious injury" (Trotter v Hart, 285 AD2d 772, 773 [3d Dept 2001]).

Plaintiff's bill of particulars claims the serious injuries he sustained were 1) a permanent consequential limitation, and 2) a significant limitation and was unable to perform his usual and customary daily activities for not less than 90 out of 180 days immediately following the collision. "To establish either permanent consequential limitation or a significant limitation, the medical evidence must provide either a quantitative or qualitative assessment to differentiate serious injuries from mild or moderate ones" (Clements v Lasher, 15 AD3d 712, 713 [3d Dept 2005]; see Toure, 98 NY2d at 350.) In order to establish "the 90/180-day category, plaintiffs' evidence must establish the existence of a nonpermanent medically determined injury or impairment that prevents [the plaintiff] from performing substantially all of [his] usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury" (Clements, 15 AD at 713; Insurance Law § 5102 [d]; see Toure, 98 NY2d at 357.)

Plaintiff called Luis A. Mendoza, Jr., M.D. to testify as to Plaintiff's injuries. Dr. Mendoza reviewed Plaintiff's medical records and recounted the physical examination he performed on Plaintiff. Dr. Mendoza, subject to cross-examination, reviewed his initial report from his March 31, 2014 examination and his follow-up report from his September 30, 2015 examination. These reports found, inter alia, restricted range of motion to Plaintiff's neck and back, but not Plaintiff's leg or knee. The reports also found post-concussive syndrome and injuries which were consistent with Plaintiff's other medical records. Even almost three years after the collision, Dr. Mendoza still found continued pain and injury to Plaintiff.

The Court further calls attention to Plaintiff's testimony that the Sunday before his trial, which was approximately three years after the collision, Plaintiff was admitted to the emergency room with severe back pain and prescribed a muscle relaxer. His testimony as to the amount of medications and pain relievers he continues to take further support his claim for a permanent consequential limitation. While Plaintiff admits to still riding his bicycle to work, which undermines his back injury claim, the Court understands he is a working-class individual fighting to make a living; this is his means of transportation. Plaintiff's injuries have affected his work duties as well, as he no longer pushes the heavy "u-boat" carts and his lifting and restocking is limited. Therefore, given Dr. Mendoza's testimony and report, including cross-examination, and more generally the entire medical record and findings therein, coupled with the credible testimony from Plaintiff, the Court finds that Plaintiff has sustained a permanent [*6]consequential limitation to his back.

While unnecessary, the Court further finds that it is even clearer that Plaintiff satisfies the 90 out of 180 day category. This is corroborated by both Plaintiff's testimony, a nearly five-month absence from work, and his physical therapy records which demonstrated for more than 90 days after the collision Plaintiff was having difficulty performing physical therapy exercises and continued to report difficulty at home such as sleeping. The Court believes it is simply indefensible to claim, based on the totality of the records, that Plaintiff's "usual and customary daily activities" were not substantially prevented for 90 days after the collision.

Since Plaintiff has demonstrated that his back injury is a serious injury within the meaning of the Insurance Law, and further establishing the 90 out of 180 threshold, he can recover for any and all the injuries proximately caused by the subject accident. (See Linton v Nawaz, 14 NY3d 821, 822 [2010]; see Mulligan v City of New York, 120 AD3d 1155, 1156 [1st Dept 2014]; Rubin v SMS Taxi Corp., 71 AD3d 548, 549—50 [1st Dept 2010] ["Accordingly, once an alleged claim meets at least one of the serious injury thresholds, the statute's gatekeeping function, to reduce caseloads by limiting what the courts adjudicate, is satisfied."].)

Damages

Plaintiff's bill of particulars alleges, inter alia, a traumatic brain injury, concussion, post-concussion syndrome, headaches, memory problems, cervical pain, lower back pain, pain in the right knee, pain in the left leg, and other related injuries. However, the Court notes that Dr. Mendoza opined at trial that Plaintiff as "a permanent restriction of his neck and back, that he sustained a concussion with a cognitive loss and a loss of memory of the accident showing that he has had an injury to the brain." When examining Plaintiff, Dr. Mendoza also diagnosed Plaintiff with a concussion, cognitive functioning disorder, post concussive disorder, and a lung contusion.

Therefore, the Court groups these injuries as presented in trial, to wit: brain injury, back injury, neck injury, and leg injury. The Court reviewed the entire medical record submitted in this trial, page-by-page, and through each treatment note or report provided. The Court acknowledges the many diagnoses and conditions presented therein, but addresses those pertinent herein.

Brain Injury

Plaintiff contends he sustained a traumatic brain injury. The emergency department at Kingston Hospital diagnosed him with a concussion which was confirmed upon transfer to Albany Medical Center. No skull fractures found. Head pain and blurred vision were reported. Headaches were diagnosed. Plaintiff was discharged with post-concussive syndrome. Follow-ups in January with Northern Dutchess Hospital yielded similar findings, including a diagnosis with a concussion, brain injury, and post-traumatic headaches.

Plaintiff presented for physical therapy. He regularly reported cognitive issues such as dizziness, difficulty sleeping, and frontal head pain.

Plaintiff presented to Dr. Mendoza for an examination on March 31, 2014. He complained of headaches and memory problems since the subject collision. Dr. Mendoza diagnosed him with a post closed head trauma with loss of consciousness greater than five minutes and post-concussion syndrome with cognitive disorder. He testified that Plaintiff was having trouble recalling a list of three objects he presented to him during the office visit.

Dr. Mendoza re-examined Plaintiff on September 30, 2015, and found the same two diagnoses applicable. Dr. Mendoza testified that Plaintiff was able to recall the list of three [*7]objects, indicating improvement, but still opined Plaintiff needed to be evaluated and treated by a neuropsychologist. To this extent, Dr. Mendoza did not believe Plaintiff's care and treatment had been to the standard of care, as no MRI or other imaging study of Plaintiff's brain had been performed. Dr. Mendoza's final report found that Plaintiff still continued to have headaches and memory problems.

This was corroborated by Plaintiff's testimony at trial which claims his headaches have gotten worse than they were when the collision occurred because "it stays longer" and even lasts a day or two long. They occur every couple of days including the night before the trial. The headaches start with pain as a 10 out of 10, and cause a cold sweat. Plaintiff takes 800 milligrams of Advil which help the intensity of the headaches. Plaintiff also testified he still has memory problems.

It must be noted that Dr. Mendoza did not diagnose Plaintiff with a traumatic brain injury. Nor has any medical record or treatment note, except for the general diagnosis of a "brain injury" at the emergency room.

Traumatic Brain Injury: Dr. Shajenko's IME Report and Failure to Appear

However, Defendant noticed and required Plaintiff to attend an IME examination by Lydia Shajenko, M.D., Ph.D. who did classify Plaintiff with a traumatic brain injury. The examination was performed on June 1, 2015. Defendant's expert disclosure dated July 14, 2015, provided that Dr. Shajenko will testify consistent with her report, dated July 7, 2015, and "in rebuttal to any evidence presented by the plaintiff in his case-in-chief, which touches upon [Dr. Shajenko's] area of expertise." Dr. Shajenko was listed as a witness for the trial by the defense only.

At trial, Defendant's counsel admitted that he was not calling Dr. Shajenko who did not come to the courthouse. Counsel candidly stated on the record "[i]f there was a jury here it would be the same thing. I suppose the jury could be given a missing witness charge . . . ." Defense counsel objected to the IME report coming into evidence as hearsay. Plaintiff argued that the report is admissible as it was sworn under the penalties of perjury. Alternatively, Plaintiff argues that a missing witness charge drawing the strongly possible inference adverse to Defendant's position should also be issued.

First, the IME report is inadmissible hearsay and was not used by any expert during trial or treatment as a basis for an opinion. (See Anderson v Dainack, 39 AD3d 1065, 1066—67 [3d Dept 2007]). Rather, it is being offered to prove the truth of the matter asserted, namely that Plaintiff has a traumatic brain injury. This is an independent finding, not used to form a professional opinion by any treatment provider or expert and the witness is not subject to full cross-examination at trial thus prohibiting its admissibility. (See Anderson, 39 AD3d at 1066—67; see also Hambsch v New York City Transit Auth., 63 NY2d 723, 726 [1984].)

Second, just because there is no jury does not mean there can be no missing witness charge. Indeed, "[a] trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify in a civil proceeding" (Matter of Nassau County Dept. of Social Servs. v Denise J., 87 NY2d 73, 79 [1995] [affirming bench decision from family court judge which draw adverse inference from missing witness charge]).

In assessing whether a missing witness charge and inference is warranted, the Court of Appeals has established preconditions which are "applicable to both criminal and civil trials" (DeVito v Feliciano, 22 NY3d 159, 165—66 [2013]). These preconditions require that "(1) the witness's knowledge is material to the trial; (2) the witness is expected to give noncumulative [*8]testimony; (3) the witness is under the 'control' of the party against whom the charge is sought, so that the witness would be expected to testify in that party's favor; and (4) the witness is available to that party" (DeVito, 22 NY2d at 165—66 [citations omitted]). Here, Defendant does not deny that Dr. Shajenko' knowledge was material. Nor is Dr. Shajenko's testimony cumulative. Dr. Shajenko, hired by Defendant to perform the IME and is clearly available to them. She was called to testify by Defendant and disclosed in Defendant's expert disclosure that she will be testifying pursuant to her report and in rebuttal to Plaintiff's expert which is in Defendant's favor.

Therefore, the Court agrees with Plaintiff—and Defendant's counsel who openly admitted on the record in Court that the missing witness charge is appropriate for a jury—and applies the missing witness charge and the "strongest inference that the opposing evidence permits against a witness" (Matter of Nassau, supra, 87 NY2d at 79).

However, this does not mean the Court is able to utilize the inadmissible report. Rather, the Court is able to draw the strongest inference that Dr. Shajenko's rebuttal of Dr. Mendoza would have been favorable to Plaintiff. Since Dr. Mendoza never testified there was a traumatic brain injury, this does not mean this diagnosis comes into evidence. There is no other objective proof as to the traumatic brain injury. Therefore, only Dr. Mendoza's and the medical treatment reports are used to value Plaintiff's brain injury.

Back Injury

Plaintiff contends he sustained a lower back injury. He complained of lower back pain to the emergency department in follow-up visits. Shortly after his emergency department visit he was diagnosed with a lumbosacral strain. Follow-up visits to Northern Dutchess Hospital included reports of pain being 10 out of 10, with 10 being the most severe pain.

At physical therapy, while Plaintiff had days reporting no back pain, he did consistently report back pain throughout his course of treatment.

Dr. Mendoza's first examination revealed a restricted range of motion in the thoracic and lumbar region of Plaintiff's pain. There was tenderness or trigger point pain on palpation throughout the thoracic region (T1 through L1). Dr. Mendoza's second examination revealed similar findings for the back.

An EMG nerve conduction study conducted by Alan Ng, M.D. on April 16, 2014 found "no evidence of lumbar radiculopathy at this time."

Dr. Mendoza's re-examination a year and a half later revealed similar results. Dr. Mendoza's final report concluded that Plaintiff has a 16% loss of range of motion to the back which is permanent and causally related to the subject accident.

Plaintiff testified he continues to have back pain which can be very severe, including the Sunday before the trial where he had to admit himself to the emergency room for treatment. He testified on the stand he was presently having back pain.

There was a prior workers' compensation injury from September of 2012 causing a back injury. Plaintiff did not miss any time from work because of this injury and classified it as "a little muscle or something" injury. There was no evidence that this back injury was causing any limitations at the time of the subject collision.

Neck Injury

Plaintiff contends he sustained a neck injury. He complained of neck pain to the emergency department in follow-up visits. He was diagnosed with a neck strain. During physical therapy, he [*9]reported some neck pain particularly when bending his head forward. This was localized to the lower cervical and upper thoracic, particularly the right side.

Dr. Mendoza's first examination revealed a restricted range of motion for the neck with pain and spasms on palpation. There was also trigger point tenderness. "[M]oderate to severe pain to the neck" was reported. Dr. Mendoza's second examination revealed similar findings. Dr. Mendoza's final report concluded that Plaintiff has a 16% loss of range of motion to the neck which is permanent and causally related to the subject collision.

Plaintiff testified he continues to have neck pain once a week or every two weeks, "on and off[.]" The neck pain is presently localized to his right side, and feels like "pulling[.]" The frequency of the neck pain is the same as it was at the time of the collision. The pain "feels like it's burning sometime[s] . . . "[i]t hurts so bad you can't move your neck."

Leg Injury

Plaintiff contends he sustained a leg injury. Kingston hospital diagnosed Plaintiff with a hip contusion. Radiology results did not reveal any hip, left leg, or right knee fractures. Dr. Mendoza's first examination revealed 4/5 muscle strength in both lower extremities, which he testified was a "slightly reduced" amount of strength. Dr. Mendoza's final report concludes that any leg injury has resolved.

Plaintiff fractured a leg as a child. There was no indication in the record that this caused any continuing disability or injury.

Value of Damages

Plaintiff was 22 years old at the time of the collision and presently 26 years old. The value of the damages is premised on his age and upon a survey of the jury verdict reports and reasonable compensation for similar injuries pursuant to CPLR § 5501 (c). The Court notes that neither party provided any valuation of injuries or verdict reporters. Plaintiff requested $75,000 for past pain and suffering, and $102,000.00 for future pain and suffering premised off Plaintiff's life expectancy of another 51 years.

In Leszczynski v Town of Neversink (107 AD3d 1183 [3d Dept 2013]), the Appellate Division, Third Department, found $25,000 for past pain and suffering and $150,000 for future pain and suffering reasonable compensation where the plaintiff was diagnosed with a concussion and herniated disc at L5-S1 requiring surgery. Here, Plaintiff's back injury is less-severe than the injury in Leszcynski as there was no surgery, but Plaintiff has a worse recorded brain injury and concussion than the plaintiff did in Leszcynski.

In Jackson v Mungo One, Inc. (6 AD3d 236 [1st Dept 2004]), the Appellate Division, First Department, found $412,500 for past pain and suffering reasonable compensation where the seven-year-old infant-plaintiff suffered a concussion, post-concussion syndrome, posttraumatic stress disorder, and cognitive defects. Here, Plaintiff is significantly older than the infant-plaintiff and the Court gives more value to the infant-plaintiff's injury to his growing brain as opposed to Plaintiff's injury herein. However, Plaintiff suffered the same injuries, with the exception of posttraumatic stress disorder—which was mirrored by diagnoses of anxiety and post-accident anxiety. The Court acknowledges the locality of this verdict in New York County, but further acknowledges it was rendered 12 years ago.

In Zailahy v Andre (2015 WL 5915304 [Sup Ct, Ulster County 2015, Gilpatric, J.]), the jury awarded $50,000 to a 40-year-old plaintiff for a concussion, post-concussive syndrome, fractured pinky finger, cervical radiculopathy, cervical, thoracic, and lumbar strains with muscle spasms, bilateral shoulder sprains, and a left knee contusion. Here, Plaintiff is younger and has a [*10]comparative neck and back injuries. He also has a leg contusion but no fractured finger.

In Coughlin v Vardakis, (2015 WL 5139180 [Sup Ct, Ulster County 2015, Mott, J.]), the jury awarded plaintiff Coughlin $125,000 for a cerebral concussion, C3-C4 disc bulge, aggravation of a pre-existing cervical spondylosis at C6-C7, and cervical and thoracic strains. Here, Plaintiff has comparable brain injuries and cervical and thoracic strains. While Plaintiff does not have a disc bulge, he has continued and severe back pain and worse cognitive injuries.

In Rodman v Deangeles (2015 WL 10912046 [Sup Ct, Cortland County 2015, Rumsey, J.]), the jury awarded $265,000 for pain and suffering for a concussion with post-concussive disorder with sequelae including headaches, tinnitus, visual disturbances, attention and memory deficits, disc spacing narrowing at C4-T1, anterior subluxation at C4-C5, a hematoma to the left posterior scalp, and lacerations to his hips, legs, shoulders, and arms. Here, Plaintiff's cognitive injuries are similar to the plaintiff's in Rodman, while the neck injuries are less serious. However, Plaintiff's spinal injuries extend beyond the cervical vertebrae, through the thoracic, and into the lumbar.

In Tintz v Ducka (2014 WL 5463548 [Sup Ct, Columbia County 2015, Jablonski, J.]), the jury awarded $500,000 to the 28-year-old plaintiff who was rear-ended by defendant and sustained a disc herniation and lumbar tear at L5-S1 resulting in three steroid injections and one trigger point injections. The plaintiff's expert opined she will permanent suffer pain and weakness in her back. Here, Plaintiff sustained back injuries less-severe than the plaintiff in Tintz, but he is younger and Dr. Mendoza's opinion—which was unrebutted at trial—is that the back injuries will be permanent. The plaintiff in Tintz also did not have a brain injury, which Plaintiff here does.

In Leffredo v Gail (2015 WL 9854525 [Sup Ct, Schenectady County 2015, Buchannan, J.]), the jury awarded $145,000 to the plaintiff, who was in his late 40s, for soft tissue cervical injuries which resulted in pain and prevented his neck from turning more than 45 degrees. Here, Plaintiff is younger had has less-severe neck injuries, but has brain and lower back injuries.

Upon due deliberation of the medical record, the testimony, the age of Plaintiff, the cited cases above, and the additional research of reasonable compensation and jury verdicts, including based on this Court's first-hand experience in other jury verdicts and settlements in the County of Ulster, the Court finds to justly and fairly compensate Plaintiff, he is awarded $80,000 for past pain and suffering, including the lung contusion and leg injuries which both have resolved, and the Court awards $145,000 for future pain and suffering.

Further, the Court awards $200.00 for Plaintiff's second cause of action for property damages to his bicycle. This is uncontested by Defendant. The record demonstrates different values of $200, $250, and $300 in Plaintiff's complaint, bill of particulars, and trial testimony. Therefore, the Court awards the lowest value.

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED that Plaintiff's first cause of action asserted in the Complaint is GRANTED; and it is further

ORDERED that the Court awards Plaintiff the amount of $225,000 as outlined above for the first cause of action; and it is further

ORDERED that Plaintiff's second cause of action asserted in the Complaint is GRANTED; and it is further

ORDERED that Plaintiff shall be entitled to $200.00 for property damage under the second cause of action; and it is further

ORDERED that all other relief sought by either party is DENIED, in its entirety; and it is further

ORDERED that Plaintiff's counsel is hereby directed to provide the Court with a proposed Judgment, on notice, within 35 days of the date of Plaintiff's filing of the instant Decision and Order.

This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.

IT IS SO ORDERED.

E N T E R :

DATED: November 21, 2016

Catskill, New York

_______________________________

HON. LISA M. FISHER

SUPREME COURT JUSTICE

Papers Considered:

1) The Court considered all trial exhibits EXCEPT not Plaintiff's Exhibit 12 (IME Report of Lydia Shajenko, M.D., Ph.D), the trial transcript, pleadings (complaint, answer, plaintiff's bill of particulars, defendant's bill of particulars, defendant's expert disclosure), and the post-trial submissions made to Justice Lisa M. Fisher and this Court, including:

a. Findings of Fact and Conclusions of Law, of Derek J. Spada, Esq., dated April 19, 2016; and

b. Post-trial memorandum of law, of Matthew V. Mirabile, Esq., dated December 21, 2015.