Pedro Collazo, appellant, v. State of New York, respondent. (2014)

Submitted—April 11, 2014

DECISION & ORDER

In a claim to recover damages for negligence and medical malpractice, the claimant appeals from a judgment of the Court of Claims (Ruderman, J.), dated September 7, 2012, which, after a nonjury trial, awarded him damages in the principal sums of only $1,600 for past pain and suffering and $0 for future pain and suffering.

ORDERED that the judgment is modified, on the facts and as a matter of discretion, by deleting the provision thereof awarding damages for past pain and suffering in the principal sum of $1,600 and substituting therefor a provision awarding damages for past pain and suffering in the principal sum of $4,300;  as so modified, the judgment is affirmed, without costs or disbursements.

“ ‘In a nonjury case, this court has the power to weigh conflicting testimony and inferences that may be drawn from such testimony and can grant that judgment which upon the evidence should have been granted by the trial court’ ” (Karagiannis v New York State Thruway Auth., 187 A.D.2d 1009, 1010, quoting Mesick v. State of New York, 118 A.D.2d 214, 219).   Where, as here, the record is complete, the power extends to making an appropriate award of damages (see Rivera v. State, 205 A.D.2d 602;  Karagiannis v New York State Thruway Auth., 187 AD3d at 1010).

Considering the nature of the claimant's pain and suffering, including his mental anguish concerning his recurring seizure-like episodes accompanied by headaches, dizziness, vomiting, and difficulty breathing, with no diagnosis, and his two hospitalizations over a 43–day period, we find the award for past pain and suffering of the principal sum of $1,600 to be inadequate, and accordingly increase that award to the principal sum of $4,300.

However, the trial court properly declined to grant the claimant an award for future pain and suffering (see Mosberg v. Elahi, 80 N.Y.2d 941;  Tatta v. State, 19 AD3d 817, 818).

MASTRO, J.P., ROMAN, HINDS–RADIX and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court