SUPREME COURT: COUNTY OF CHAUTAUQUA

____________________________________

BRYAN TYE, an Infant, by his Mother

and Natural Guardian, ARLENE DEJESUS,

and ARLENE DEJESUS, Individually,

Plaintiffs,

vs Index #H-09638

JAMES C. JAFFRAY,

Defendant.

____________________________________

DAVID W. COVINO, ESQ.

Attorney for Plaintiffs

DECISION

GERACE, J.

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

_____________________________

JOSEPH GERACE

Supreme Court Justice

To Counsel:

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.