Joe v. State

203 A.D.3d 1258

164 N.Y.S.3d 299

Byung Choon JOE, Appellant,

v.STATE of New York, Respondent.

532176

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 10, 2022

Decided and Entered: March 3, 2022

Napoli Shkolnik, PLLC, New York City (Michael J. Hutter of Powers & Santola, LLP, Albany, of counsel), for appellant.

London Fischer, LLP, New York City (Anthony F. Tagliagambe of counsel), for respondent.

Allen & Overy LLP, New York City (Sapna Palla of counsel), for Asian American Bar Association and another, amici curiae.

Before: Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeal from a judgment of the Court of Claims (Milano, J.), entered May 27, 2020, upon a decision of the court in favor of claimant.

Claimant was injured on July 24, 2013 when he fell approximately six feet from a scaffold while removing asbestos at Building 9 of the Harriman State Office Campus in the City of Albany. This claim ensued and, after the Court of Claims granted claimant's motion for summary judgment on the issue of liability, it conducted a nonjury trial to determine the appropriate amount of damages. The Court of Claims thereafter awarded damages in the amount of $461,447.16, representing $221,447.16 for past medical expenses, $15,000 for past lost earnings and $225,000 for past pain and suffering.¹ Claimant appeals from the judgment entered thereon.

We affirm. Claimant challenges the damages award in various respects. Although "on our consideration of a nonjury trial we may review the evidence and independently render judgment as warranted by the record, we grant deference to the trial court's factual findings, especially if they rest largely on credibility determinations" ( Seymour v. Northline Utils., LLC, 79 A.D.3d 1386, 1387, 914 N.Y.S.2d 322 [2010] ; see Baba–Ali v. State of New York, 19 N.Y.3d 627, 640, 951 N.Y.S.2d 94, 975 N.E.2d 475 [2012] ; Roque v. State of New York, 199 A.D.3d 1092, 1094, 156 N.Y.S.3d 557 [2021] ). Although we afford deference to the Court of Claims’ assessment of the credibility of the witnesses who testified before it, similar deference is not needed with regard to those physicians and experts whose reports and deposition testimony transcripts were entered into evidence in lieu of placing them on the stand (see Bauer v. Goodrich & Sherwood Assoc., Inc., 304 A.D.2d 957, 958, 758 N.Y.S.2d 200 [2003] ). Nevertheless, after exercising our "broad authority to independently review the probative weight of the evidence," we perceive no reason to disturb the judgment ( Driscoll v. State of New York, 160 A.D.3d 1240, 1242–1243, 74 N.Y.S.3d 675 [2018] [internal quotation marks and citations omitted]; accord Roque v. State of New York, 199 A.D.3d at 1094, 156 N.Y.S.3d 557 ).

Claimant testified at trial, relating how he lost consciousness and injured his head, neck, back, right shoulder and elbow, and left wrist and elbow when he fell from the scaffold. He acknowledged that he had neck problems prior to the accident but denied having any preexisting problems with his right shoulder or back. Claimant, whose primary language is Korean, testified that he did not have an interpreter when he arrived at the hospital emergency room on the day of the accident and that it was difficult for him to communicate with the medical staff in English. Nevertheless, he testified to telling hospital staff about all of his injuries and pointing out swelling in his left wrist and other bruising. He also related how he returned to the hospital a week later with similar complaints in an effort to obtain a further MRI, and he described how he required treatment for his injuries and how they have caused continuing problems that have prevented him from working.

Claimant's medical records and other proof in the record undercut his account of both his prior health problems and the symptoms that supposedly arose as a result of injuries sustained in the accident. For example, the physician who treated claimant until 2015 gave deposition testimony in which he detailed how claimant had preexisting degenerative changes in his lumbar and cervical spine that had caused neck and back pain, how he had previously injured his right elbow, and how he had longstanding complaints of right shoulder pain. The discharge summary of claimant's hospital emergency room visit on the day of the accident further contradicts his testimony, reflecting that he only complained of pain in his neck and his right arm from the shoulder down and denied losing consciousness after the accident. The physical examination of claimant on that date disclosed fluid buildup, swelling and/or limited range of motion in his right shoulder, elbow and thumb but, notably, full range of motion in all of his other joints and no further indications of trauma. The diagnostic imaging conducted found no evidence of trauma beyond soft tissue swelling in claimant's right shoulder, but did confirm the existence of "[m]ultilevel degenerative changes" in his cervical spine. The records of claimant's second visit to the hospital on July 30, 2013, at which he did utilize a translator, reflect that he made complaints more consistent with his trial testimony, including that he had injured his left wrist in the accident. He again, however, denied losing consciousness. He was also clear that he only wanted an MRI of his right elbow and shoulder on that visit, and he declined, among other things, a thorough physical examination, additional X rays or a referral to an orthopedist. There were also indications that claimant had misrepresented his medical history, offered varying explanations as to what happened during the accident, and exaggerated his symptoms to medical and vocational experts retained by both him and defendant. The Court of Claims had the opportunity to view claimant on the stand and, in view of the foregoing, found that his testimony was neither persuasive nor credible. We accord deference to that assessment.

Upon stipulation, claimant further presented the report and deposition testimony of Mark McMahon, an expert orthopedic surgeon who examined claimant, reviewed some of his medical records and opined that injuries to his left wrist, right shoulder and elbow, head and cervical and lumbar spine were either caused or aggravated by the accident. McMahon also noted that claimant had ongoing problems with his left wrist, right shoulder, cervical spine and lumbar spine that could well require further medical treatment, and that his condition was permanent and would interfere with his activities and quality of life. McMahon acknowledged at his deposition, however, that he had neither reviewed all of the medical records documenting claimant's treatment nor spoken to any of claimant's treating physician. He further recognized that he had not known that claimant had neck, back, shoulder and elbow problems before the accident and that it would have been good medical practice to conduct that review before rendering an opinion on the cause of those problems. McMahon also acknowledged that claimant had misled him into believing that none of the body parts supposedly impacted by the accident had previously been injured or required medical treatment, and he admitted that such information would have been "helpful" in offering any opinion as to causation. McMahon further conceded that claimant did not give any details as to how the accident itself occurred, that he made no other effort to learn those facts, and that such information would be relevant to assessing whether claimant's ongoing physical problems were connected to it. The Court of Claims cited the foregoing facts in finding McMahon's opinion to be unpersuasive and, suffice it to say, we share the court's skepticism.

In contrast, defendant presented the opinion of a radiologist, Gordon Sze, who examined numerous images of claimant's spine taken both before and after July 24, 2013 and found that claimant had preexisting degenerative changes of the cervical and lumbar spine that did not worsen in the wake of the accident. Defendant further presented the report and deposition testimony of Andrew Bazos, an orthopedic surgeon who examined claimant, conducted a thorough review of his medical records and found that he suffered, "at most minor, self-limited soft tissue strain injuries of the neck, right shoulder, right elbow, and lower back as a result of the" accident that would have resolved with appropriate care. Bazos rejected the claimed link between the accident and cl...