Woman Claimed She Was Struck While Stepping Off a Road – Settlement: $300,000 [2006-09-18]
CASE Maria & Nick DeStefano v. Rosario Ferrara, No. 5379/05
COURT Kings Supreme
JUDGE Donald Scott Kurtz
PLAINTIFF ATTORNEYPeter DeFilippis, Peter DeFilippis & Associates P.C., New York, NY
DEFENSE ATTORNEY Michael J. Colleary, James R. Pieret & Associates, Garden City, NY
FACTS & ALLEGATIONS
On May 29, 2004, Plaintiff Maria DeStefano, 67, a school’s substitute teacher, was driving on State Route 23, in Davenport. When she reached the intersection at Buck Road, she parked her vehicle and began to cross Route 23. She was struck by a car that was being driven by Rosario Ferrara. DeStefano was propelled onto the car’s hood, into the air, and onto the ground. She sustained injuries of a hip and shoulder.
DeStefano sued Ferrara. She alleged that Ferrara was negligent in the operation of his vehicle.
DeStefano claimed that she parked her vehicle; that she checked both directions of Route 23’s traffic; that she crossed one of Route 23’s shoulders, two lanes of traffic, and another shoulder; and that she was struck while stepping onto grass that bordered the opposite side of the road. She also claimed that Ferrara’s car had crossed both lanes of traffic and one of Route 23’s shoulders. She contended that she was maintaining a normal walking pace and that she never heard or saw Ferrara’s car.
During his deposition, Ferrara contended that he saw DeStefano exiting her vehicle and that she was 75 to 100 feet away from his car.
He claimed that he was maintaining a speed of 45 mph and that his evasive and precautionary maneuvers included application of his car’s brakes, the greatest possible turn of his vehicle’s steering wheel and a 10-second-long sounding of his car’s horn. However, he admitted that he watched DeStefano cross the entire width of Route 23 and that the trip comprised at least 20 steps.
INJURIES/DAMAGES closed reduction; crepitation; decreased range of motion; dislocated shoulder; external fixation; fracture, femur; hand; internal fixation; numbness; open reduction; physical therapy; screws
DeStefano sustained a fracture of her left femur and a dislocation of her right shoulder. She was transported to a local hospital.
DeStefano’s fracture was repaired via open reduction and the internal fixation of a rod and two screws.
Her shoulder injury was also treated closed reduction and the external fixation of a rod and screws. Her hospitalization lasted 11 days, and she was subsequently admitted to a nursing home, where she underwent one week of physical therapy. After she was discharged, she underwent nearly five months of further physical therapy that was intended to improve her gait and her range of motion.
Six months after the accident, DeStefano underwent follow-up X-rays. Her treating orthopedist, who performed her surgeries and prescribed her post-operative rehabilitation, determined that the X-rays revealed osteoarthritic changes of her injured hip and shoulder.
He also determined that she suffers accident-related, permanent, partial disabilities of her left hip and right shoulder.
DeStefano’s expert neurologist determined that DeStefano suffers residual numbness of her right hand and a residual reduction of the same hand’s ability to grip and lift objects. He also determined that her right shoulder suffers residual crepitation cartilage wear that produces crackling or similar sounds.
DeStefano’s treating physical therapist determined that DeStefano suffers residual limitation of the mobility of her upper and lower extremities. The doctor also determined that the limitations impair DeStefano’s ability to ambulate, ascend and descend stairs, shower, sleep, and perform other everyday functions. DeStefano contended that most of her daily activities have been impaired.
DeStefano’s medical expenses totaled $19,607, but they were paid by no-fault insurance. She sought recovery of damages for her past and future pain and suffering. Her husband sought recovery of damages for his loss of services.
RESULT The parties agreed to a pretrial settlement. Ferrara’s insurer agreed to tender its $300,000 policy. The money addressed DeStefano’s past pain and suffering.
INSURER Harleysville Group Inc.
EXPERTS Michael Higgins, M.D., orthopedics, Oneonta, NY (treating doctor)
Reynaldo P. Lazaro, M.D., neurology, Oneonta, NY
Amy Taggart, physical medicine, Oneonta, NY(treating doctor)
EXPERTS Hurmozan Aprin, M.D., orthopedics, New York, NY
EDITOR’S NOTE The DeStefanos maintained residences in Delaware and Kings counties. Thus, the case was eligible to be heard in Kings County.