Plaintiffs, Steven Matsil (hereafter "Matsil") and Ellen Matsil, commenced this action to recover for personal injuries sustained by Matsil on June 29, 2014, when he fell from a ladder while working for Defendant, Brian Doris Home Improvements, Inc., at the home of Kevin and Amanda Gilligan. By Short Form Order dated June 17, 2015 (Feinman, J.), Defendants Kevin and Amanda Gilligan were granted Summary Judgment and released from the case. Prior to that, however, pursuant to Short Form Order dated February 29, 2016, Plaintiffs' motion seeking an order directing the entry of a default judgment against Brian Doris, Home Improvement, Inc., and for an Inquest in the nature of assessment of damages was granted, and the Inquest on damages was commenced on February 29, 2016 and concluded on March 1, 2016. Both Plaintiffs testified, as well as Dr. Raj Tolat.

The following are the Court's findings of fact:

On June 29, 2014 at approximately 10:00 a.m., Matsil was asked by Brian Doris, a principal of Brian Doris Home Improvement, Inc., to assist him with power washing a home located at 452 Westminster Road, Rockville Centre, New York 11570, which Matsil did agreed to do. Matsil then met Doris at the home, who then provided Matsil with the equipment for the job, specifically, the powerwasher, the brushes, the soap, and the ladder. Doris then placed the [*2]ladder against the home, and showed Matsil how to start the powerwasher.

Matsil testified that while holding the power washer's wand in his right hand, he climbed up the ladder, and continued to powerwash the house. The ladder then slid off the roof with him on it, and he landed on his back. Upon landing, he realized he was unable to move his arms, legs, or fingers, but still experienced terrible pain throughout his body, from his neck to his shoulders down his arms, into his wrists, his hands, his fingers, his back, and the back of his neck, all the way down to his legs. An ambulance took Matsil to South Nassau Community Hospital, where he remained in the emergency room for three to four hours before he was admitted. At the hospital, multiple X-rays, CAT scans, and MRIs revealed injuries to Matsil's neck.

The next day, Matsil underwent a laminectomy with fusion, however, during the operation, despite being sedated and the use of a device to stabilize his head, he had moved, and as a result, he ripped his scalp and received eight additional stitches. Plaintiff testified that while in intensive care following surgery, his pain was a ten on a scale of one to ten. As a result of this surgery, he was also left with at lump in the back of his neck.

Matsil remained at South Nassau Community Hospital for ten days following the accident, and during that entire time, he was unable to move his arms or fingers and was unable to do anything himself, including the use of the call button to request assistance from a nurse or aide. Matsil was unable to take medication orally, and after twenty-four hours, the doctors determined that he was unable to swallow, which inability lasted from July 1, 2014 until October 14, 2014.Although Matsil was given intravenous pain medication, he was unable to use his fingers to hit the button to dispense it, so Ellen Matsil assisted, but when she was not present he did not receive the medication. Matsil received pain medication daily, and Ellen Matsil took two weeks off from work to be with him at the hospital.

Matsil was initially fed intravenously before the doctors determined that he was best fed through a percutaneous endoscopic gastronomy (PEG) and feeding tube, which was installed on July 8, 2014. Matsil described installation of the feeding tube as one of the worst pains that he had ever had in his life. The doctors also installed a drainage for urine, which caused Matsil tremendous pain.

Upon his release from South Nassau Community Hospital, Matsil went to Mercy Medical Center to receive inpatient therapy for one month, and after a month of intense therapy, he was still unable to walk but was beginning to be able to move his fingers, arms, and hands. When he left Mercy Medical Center, he was still in pain and taking pain medication, which he still takes.

After leaving Mercy Medical Center, Matsil went to Oceanside Care Center for about one month for additional inpatient therapy and pain management, and by the time he left there to go home on August 26, 2014, his arms and hands had started working, and he had started to walk again. He left wearing a Miami neck collar, which he wore for six weeks. Once Matsil left Oceanside Care Center, Ellen Matsil had to dress him and feed him four times daily through his feeding tube: once at 6:00 a.m. before work; once when she came home at lunchtime; once after work; and once at night. She continued this routine from August 2014 until the end of October 2014.

Matsil, then continued intense occupational and physical therapy three to four times per week for approximately six to seven months at Smart Center, a part of South Nassau Community [*3]Hospital. Presently, Matsil performs therapy at home, is treated monthly by Dr. Gary Starkman in Oceanside, New York for pain management, and receives prescriptions for pain medications.

On October 24, 2014, Matsil's gastroenterologist, Dr. Harold Lipsky, removed his feeding tube without anesthesia, resulting in what Matsil described as "[f]or the second time in my life, the most amount of pain. My body went into shock."

In early 2015, Matsil consulted Dr. Latefi regarding the lump on the back of his neck, and was advised that although another operation could repair the damage, the surgery would require breaking Matsil's neck to "start all over." Dr. Latefi explained that Matsil would be better served by not undergoing the surgery unless his health and well-being were to seriously decline. Dr. Latefi also explained to Matsil that the lump was caused by a bone in his neck which had broken through the muscle.

As a result of the accident, Matsil's hand became deformed and he still has less than 100% movement in his hands, rendering him unable to complete daily tasks that he used to be able to perform. He has numbness and deformity in eight fingers, causing him to often drop items, and rendering him unable to open jars. Also, he cannot raise his arms high enough to change a light bulb.

Matsil also testified that he can also no longer naturally or without difficulty perform simple chores such as holding a screwdriver, sit in a car for extended periods of time, walk long distances, hold items without dropping them, cut his food, put his socks on, put his pants on, or brush his hair.

Matsil also testified that he is in "constant, constant pain, 24/7", and that the pain starts in his neck, shoots down his arms into his elbows, wrists, hands, and fingers, and is also present in the back of his neck by his shoulders. When he sits, his protruding shoulder bone sustains pressure, causing him pain. As a result, he must constantly move around.

Prior to the accident, Matsil used to repair items around his home and perform construction-type activities. According to Plaintiff, Ellen Matsil, prior to the accident, Matsil would do "everything round the house[,]" including gardening, maintaining the lawn, re-doing the bathroom, wallpapering, painting, and blowing leaves out of the gutters outside the house, all while still working every day. He can no longer do these activities.

Prior to the accident, Matsil used to go to the boardwalk with his family and ride bicycles, he used to walk on the beach, sail his boat, and help with cooking, all of which he can no longer do. Now, he can only walk his dog and ride in a car for short distances.

Matsil, is unable to be as affectionate to Plaintiff, Ellen Matsil, as he used to be prior to the accident. He cannot lift his arm to place it around her, nor can he go with her for long walks on the boardwalk, ride bikes with her, or bowl with her. Plaintiffs are now less socially active and less active with their son and daughter. Ellen Matsil must now drive Matsil everywhere, and help him with his hair and putting on jackets.

Matsil testified that at the time that Doris approached him to perform the work which lead to his injury, he was earning $9.00 per hour for 30 to 35 hours per week, totaling roughly $300.00 per week, annualized to $15,600.00.

Dr. Raj Tolat, a medical doctor licensed in New York who owns Premier Physical Medicine & Rehabilitation, and specializes in physiatry, testified on behalf of the Plaintiffs that he examined Matsil on February 17, 2016. Beforehand, Dr. Tolat had reviewed Matil's South [*4]Nassau Community Hospital records, including the Operative Report composed by Dr. Sachin Shah. Dr. Tolat produced a report as a result of his examination of Matsil, and his initial findings upon examining him were that he presented as a right-handed 57 year old male, who suffered an acute neck injury on June 29, 2014 when he fell off a ladder that slid down.

Dr. Tolat testified that Matsil, was admitted to South Nassau Community Hospital and underwent cervical spine surgery on July 1, 2014, which was intended to relieve nerve root compression caused by vertebral discs pushed out of place by Matsil's fall. The surgery was performed by Dr. Sachin Shah and entailed a C3 through C6 posterior cervical laminectomy with a medial facetectomy and foraminotomy, C3 through C6 posterior spinal instrumented fusion, and arthrodesis. The posterior cervical laminectomy entailed the removal of the lamina, or posterior coating of the cervical vertebrae, between the third, fourth, fifth, and sixth bones in Matsil's cervical spine in order to create space and relieve compression on nerve roots. The medial facetectomy and foraminotomy involved removing facets, i.e., posterior parts of the vertebrae, and opening up the foramen, i.e., the holes through which the nerves pass, in order to relieve nerve root compression, followed by fusion through plates and screws to realign the vertebrae and recreate spinal stability.

Titanium Stryker Oasis system was implanted for the fusion, as well as autograft with intraoperative fluoroscopy. The autograft removed bone and tissue from other locations to replace that which was removed during the procedure. Dr. Tolat explained that postoperatively, Matsil developed difficulties swallowing, requiring a percutaneous endoscopic gastronomy tube to be installed on July 8, 2014 so that Matsil could eat.

Dr. Tolat recounted that Matsil was discharged from the hospital on July 10, 2014, at which point he was then admitted to Mercy Medical Center for inpatient rehabilitation until August 4, 2014. Matsil then received subacute rehabilitation at Oceanside Care from August 4, 2014 through August 26, 2014, and thereafter received outpatient physical therapy through December of 2015. Dr. Tolat noted that Matsil's gastronomy tube was removed on October 24, 2014, and that he has regularly treated with spine surgeon Dr. Latefi, and pain management specialist Dr. Starkman.

Dr. Tolat testified that when he examined Matsil in his office, Matsil complained of ongoing pain in his neck radiating to both upper extremities, as well as numbness, tingling, weakness, and the sensation of pins and needles in both of his arms. Dr. Tolat testified that based upon a reasonable degree of medical certainty, Matsil's fall on June 29, 2014 was the proximate cause of his injuries.

Dr. Tolat made a record of the medications Matsil was taking which include Meloxicam (an anti-inflammatory), Oxycodone and OxyContin (narcotic pain medications), Gabapentin and Lamotrigine to treat nerve-related pain, Tizanidine (a muscle relaxant), Remeron (an antidepressant that is also used as a mood stabilizer and sleep aid), and Tamsulosin to help bladder regulation. Dr. Tolat testified that those medicines were all related to Matsil's injuries incurred on June 29, 2014, and that prior to this accident, he needed none of these medications. Matsil must now take all of these medications for the rest of his life to reduce his constant pain.

Dr. Tolat testified that Matsil reported trouble bending, lifting, carrying objects, and performing household chores, and that he also has trouble with fine motor tasks such as tying his shoes, buttoning his clothes, twisting jars and grasping objects without dropping them, as well as [*5]performing overhead activities. Dr. Tolat also testified that Matsil continues to exhibit difficulty swallowing and has difficulty sleeping and getting out of bed due to an overriding feeling of stiffness. He further testified that Matsil has difficulty sitting and standing for prolonged periods of time and feels his balance and gait are compromised, and that he also has difficulty differentiating between hot and cold sensations. Dr. Tolat also observed a palpable large bony protrusion to the left of Matsil's cervical midline.

Dr. Tolat testified that he also conducted another examination of Matsil to determine objective symptoms with a hand-held goniometer, an objective means of measuring range of motion for the cervical spine, lumbar spine, or any body joint segments. He noted that during the examination Matsil held his neck in a forward flexed position at 30 degrees and was able to flex his neck an additional 10 degrees, representing a 80% loss of use for forward flexion in Matsil's neck, his cervical extension was 10 degrees where 60 degrees is normal, representing a 83% loss of cervical extension, his right cervical rotation was 20 degrees where 80 degrees is normal, representing a 75% loss of right cervical rotation, and his left cervical rotation was 25 degrees where 80 degrees is normal, representing a 69% loss of left cervical rotation.

He testified that based upon a reasonable degree of medical certainty, Matsil's fall on June 29, 2014 was the proximate cause of the foregoing objective findings.

Dr. Tolat testified that he also performed a motor examination of Matsil, which was a strength test of his upper extremities, which revealed that his bilateral grip strength was four plus over five, where normal is five over five. Dr. Tolat further noted bilateral digit five finger flexion deformities. Matsil's right elbow flexion was four over five, though his left elbow flexion was normal at five over five, his bilateral elbow extension was normal at five over five, and his bilateral shoulder abduction, i.e., the ability to move his arm out to the side, was limited to ninety degrees actively and 100 degrees passively. Dr. Tolat noted that while Matsil's reflexes were normal, use of a pinwheel showed that he exhibited decreased sensation over the palmar aspect of his left hand over digits three and four and five, and that this numbness was consistent with the injuries Matsil sustained.

Dr. Tolat testified that these percentages represented an impairment and disability that preclude Matsil from performing many tasks that he needs to perform on a regular basis, and that he is unable to work as a salesperson in a hardware store lifting putting boxes away, crouching, pulling, or obtaining overhead objects in his current condition.

Dr. Tolat testified that given Matsil's condition, his prognosis was poor, and that he had advised Matsil to continue with a daily home-exercise program, continue to follow up with Dr. Starkman for pain management, continue to follow up with his other doctors, and to consider a formal physical therapy program and follow-ups with his spine surgeon. Dr. Tolat testified that he determined that if Matsil engaged in a formal physical therapy program three times per week, he would spend on a average $67.00 each visit; that monthly pain management visits would cost him approximately $250.00 per visit; and that regular follow-ups with the spine surgeon four times per year would cost him $250.00 per visit.

Where liability has been determined in a plaintiff's favor, that plaintiff is entitled to recover a sum of money that will justly and fairly compensate the plaintiff for any injury, disability and conscious pain and suffering caused by the liable defendant(s) (see Tate by [*6]McMahon v. Colabello, 58 NY2d 84, 87-88 [1983]; Van Nostrand v. Froehlich, 44 AD3d 54, 62 [2nd Dept. 2007]). The purpose of awarding compensation for any conscious pain and suffering caused by the defendant since the time of the accident to the date of the award is to restore the injured plaintiff to the position held prior to injury (see McDougald v. Garber, 73 NY2d 246, 253 [1989]). Pursuant to the February 5, 2015 Order, liability was resolved in favor of the Plaintiffs and the only issue left for this Court to determine is damages.

A plaintiff may recover damages for pain and suffering and loss of enjoyment of life, including the loss of the ability to perform daily tasks, to participate in the activities which were a part of the plaintiff's life before the injury, and to experience the pleasures of life, where that plaintiff has some level of awareness (see McDougald, 73 NY2d at 255; Williams v. City of New York, 71 AD3d 1135, 1137 [2nd Dept. 2010]; Ramos v. Shah, 293 AD2d 459, 460 [2nd Dept. 2002]). Suffering attributable to the limitation of a plaintiff's life's activities is a factor to be considered in awarding damages for pain and suffering (Policastro v. Savarese, 171 AD2d 849, 854 [2nd Dept. 1991]). This includes claims of loss of support or services by a spouse, including elements such as love, companionship, affection, society, sexual relations, and solace (Buckley v. Nat'l Freight, Inc., 90 NY2d 210, 216 [1997]; Millington v. Se. Elevator Co., 22 NY2d 498, 500 [1968]). A spouse may recover damages for past expenses under such claims ( Maidman v. Stagg, 82 AD2d 299, 301 [2nd Dept. 1981]).

Evidence concerning the effect that injuries had on a plaintiff's activities and personality is relevant to loss of enjoyment of life, which is a factor to be considered by the jury in assessing damages for pain and suffering. (Hoberg v. Shree Granesh, LLC, 85 AD3d 965, 967 [2nd Dept. 2011]).

There is no "permanent injury" requirement or threshold for a plaintiff to be awarded damages for future pain and suffering (see Gallagher v. Samples, 6 AD3d 659, 660 [2nd Dept. 2004]).

An injured plaintiff may recover for past losses as well as for reasonably certain future losses, taking into account plaintiff's age, health conditions, life expectancy, work-life expectancy, and other such factors; this may include out-of-pocket medical expenses and other economic expenses, lost earnings and other monetary employment benefits, and impairment of earning ability. (McDougald, 73 NY2d at 253-54; Calo v. Perez, 211 AD2d 607 [2nd Dept. 1995]).

A "Life Expectancy Table" maybe utilized as a guide to determine the plaintiff's life expectancy and award damages based on anticipated future pain and suffering (see Blyskal v. Kelleher, 171 AD2d 718, 718-19 [2nd Dept. 1991]). Plaintiff's counsel offered the Life Expectancy Table into evidence and the Court has considered it.

At bar, Matsil suffered acute trauma to C3-4, C4-5, and C5-6; cervical cord compression; cervical cord contusion; cervical stenosis; cervical myelopathy; acute trauma to C3-4, C4-5 and C5-6; multilevel disc disease with focal disc protrusions; spinal stenosis with cord compression; and post-traumatic contusions with edema within the cord at C4-5 and C5-6. As a result, Matsil suffered paralysis to both arms, hands, fingers, and legs. The testimony supports Matsil's claims that both treatment and the injury itself subjected him to prolonged and extensive physical and mental pain and suffering, as well as severe economic loss. On July 1, 2014, Matsil underwent a C3 through C6 posterior cervical laminectomy with a medial facetectomy and foraminotomy, C3 [*7]through C6 posterior spinal instrumented fusion, and arthrodesis. A Stryker Titanium Stryker Oasis system was implanted for the fusion, as well as autograft with introperative fluoroscopy and a demineralized bone matrix and corticocancellous chips allograft. Matsil is also left with a protrusion behind his neck. He was required to utilize a feeding tube from July 8, 2014 to October 24, 2014, a total of 109 days.

Based upon the testimony of Dr. Tolat and the evidence presented, Matsil will never fully recover from his injuries, and he is completely disabled and unable to work. The Court further finds that based upon the testimony and evidence presented, Plaintiff, Ellen Matsil, underwent mental anguish and expense caring for Matsil after his accident and their relationship has suffered as a result of this ordeal, and that Matsil remains unable to participate in the life activities, he, his wife, and his family enjoyed prior to his injuries. Moreover, as of the date of the Inquest, Matsil had yet to receive his disability benefits, further straining his family's finances.

At the time of the accident in 2011, Matsil was 54 years of age, and according to the Life Expectancy Table, Matsil had a estimated life expectancy of 24.9 years. Therefore, Matsil will likely live until he is 79 years of age.

The Court has carefully reviewed the testimony and evidence presented at the Inquest, as well as the relevant law, and concludes as follows:

Plaintiff, Steven Matsil, is hereby awarded $1,500,000.00 in past pain and suffering; $343,200.00 in future lost wages, (calculated at a rate of $15,600.00 for each of the 22 years he intended to continue working); $2,500,000.00 in future pain and suffering (calculated at a rate of $100,000.00 for his expected 25 remaining years of life); $351,250.00 for future medical expenses (calculated at $67.00 per physical therapy visit, three times per week, 50 of 52 weeks per year, for the expected 25 remaining years of his life, for a total of $251,250.00; plus $250.00 per monthly visit for pain management, 12 months per year for the expected 25 remaining years of his life, for a total of $75,00.00; and $250.00 per quarterly follow-up to the spine surgeon, four times per year for the expected 25 years of his life, for a total of $25,000.00).

Plaintiff, Ellen Matsil, is hereby awarded $50,000.00 in past lost services; and $1,250,000.00 in future lost services (calculated at a rate of $50,000.00 for the expected 25 remaining years of Matsil's life.

The Clerk of the Court, upon payment of all appropriate fees, will enter judgment upon presentation of this Order without any further proceedings.

This constitutes the decision and order of this Court.