SUPREME COURT: COUNTY OF CHAUTAUQUA
BRYAN TYE, an Infant, by his Mother
and Natural Guardian, ARLENE DEJESUS,
and ARLENE DEJESUS, Individually,
vs Index #H-09638
JAMES C. JAFFRAY,
DAVID W. COVINO, ESQ.
Attorney for Plaintiffs
Plaintiff seeks a judgment by default on his action
for damages against defendant for gross negligence, willful
misconduct, assault and battery.
On July 19, 1993, plaintiff, 14 years old, was
crossing a street on his bike when defendant "obviously
wanted to turn. I was in the middle of the street and he
didn't have no blinker on and he turned right into me and
had to slam on his brakes. And I kept crossing the street
like nothing went on, you know. It was a close call, you
know. I didn't think nothing of it. And he came behind me
and confronted me and accidently fell on my leg."
Plaintiff suffered spiral fractures of the middle
third, distal third junction area of the left tibia and
fibula, and a tri-plane fracture of the left distal tibia.
This fracture did involve the growth plate.
His long leg plaster cast was removed September 3rd.
He had good stability of his fractured tibia and fibula;
good motion of the ankle. His doctor applied a short leg
cast. In November he was getting fairly good mobility in
is ankle, but was still disabled.
In January, he had full motion of his ankle and knee,
and was advised to resume regular activities.
April 12, 1994, he had problems with pain in his left
ankle, especially after attempting sports activities. His
doctor said he had loss of a few degrees of full plantar
flexion and a few degrees of full dorisflexion of his left
ankle. His ankle was stable; no tenderness; no deformity;
fractures well healed.
In the affidavit prepared for him, Dr. Cardamone
stated that in his opinion, it is more likely than not that
Bryan Tye will continue to have occasional pain in his left
ankle and more likely than not that he has a mild permanent
partial disability of his left ankle.
After hearing the testimony, reviewing the petition,
medical records and transcript, the Court awards plaintiff
$45,000 in damages. This amount is consistent with JAKALOW
v. CONSOLI, 175 AD2d 826, and, with a verdict a Chautauqua
County Supreme Court jury would be likely to give.
After reimbursement of his expenses, Counsel is
awarded 1/3 of the balance of any recovery.
Submit judgment with a directive that a copy of the
order be served on the defendant and his insurance carrier.
Dated: October 30, 1995
Mayville, New York
Supreme Court Justice
Please take notice that a DECISION and ORDER of
which the within is a copy, is duly granted in the above
entitled action on the day of , 1995, and
duly entered in the office of the Clerk of the County of
Chautauqua on the same date.