        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

757
CA 13-00402
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


DAVID M. REYNOLDS,
CLAIMANT-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK,
DEFENDANT-APPELLANT-RESPONDENT.
(CLAIM NO. 106738.)


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF
COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.

BURKWIT LAW FIRM, PLLC, ROCHESTER (CHARLES F. BURKWIT OF COUNSEL), FOR
CLAIMANT-RESPONDENT-APPELLANT.


     Appeal and cross appeal from a judgment of the Court of Claims
(Nicholas V. Midey, Jr., J.), entered November 5, 2012. The judgment
awarded claimant money damages after a nonjury trial.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimant commenced this action seeking damages
arising from injuries he allegedly sustained when New York State
Troopers used excessive force against him during a traffic stop. The
Court of Claims bifurcated the trial and found in favor of claimant on
the issue of liability, i.e., that the use of force constituted an
assault and battery against claimant. Defendant now appeals and
claimant cross-appeals from a judgment awarding claimant money damages
after the trial on damages.

     Contrary to claimant’s contention, the court’s determination that
the assault was not a proximate cause of claimant’s lumbar spine
injuries is supported by a fair interpretation of the evidence (see
Treat v Wegmans Food Mkts., Inc., 46 AD3d 1403, 1404-1405). The court
determined that claimant suffered a closed head injury and herniated
discs in his cervical spine as a result of the assault, and awarded
claimant $225,000 for past pain and suffering and $475,000 for future
pain and suffering. Contrary to the contentions of claimant and
defendant, the award for past and future pain and suffering does not
deviate materially from what would be reasonable compensation (see
CPLR 5501 [c]; Ellis v Emerson, 57 AD3d 1435, 1437).

     Claimant further contends that the award of $300,000 for future
                                 -2-                           757
                                                         CA 13-00402

medical expenses should be increased to cover treatment for his lumbar
spine injuries, closed head injury and resulting symptoms, and
emotional issues. Inasmuch as the court did not err in concluding
that the lumbar spine injuries were not a proximate result of the
assault, we conclude that the court did not err in failing to award
future medical expenses for those injuries. With respect to the
closed head injury and emotional issues, we conclude that claimant
failed to establish with the requisite reasonable certainty that he
would require future medical expenses to treat those injuries (see
Huff v Rodriguez, 45 AD3d 1430, 1433; Faas v State of New York, 249
AD2d 731, 732).




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
