ARAUJO v. STATE (2009)

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

Carlos ARAUJO, Claimant-Appellant, v. The STATE of New York, Defendant-Respondent.

Decided: April 28, 2009

SAXE, J.P., FRIEDMAN, MOSKOWITZ, FREEDMAN, RICHTER, JJ.

Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for appellant. Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.

Judgment of the Court of Claims of the State of New York (Terry Jane Ruderman, J.), entered December 12, 2007, after a nonjury trial, awarding claimant the principal sum of $65,000 for past pain and suffering, unanimously affirmed, without costs.

The court's determination that the worsening condition of claimant's knee after his 1997 accident was caused not by the accident but by a degenerative condition that had its nascency in a surgery pre-dating the accident by more than nine years was a result of the resolution of credibility issues presented by conflicting expert testimony, and there is no basis to disturb that determination (see Watts v. State of New York, 25 A.D.3d 324, 809 N.Y.S.2d 5 [2006] ). Accordingly, the determination to make no award for future pain and suffering will not be disturbed (see Mejia v. JMM Audubon, 1 A.D.3d 261, 767 N.Y.S.2d 427 [2003] ).

The award of $65,000 for past pain and suffering does not deviate materially from what would be reasonable compensation under the circumstances presented (CPLR 5501[c]; see e.g. Lopez v. Consolidated Edison Co. of N.Y., Inc., 40 A.D.3d 221, 835 N.Y.S.2d 115 [2007] ).

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