Novko v. State Of New York

285 A.D.2d 696 (2001)

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Nature of the Case

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Facts

P, a self-employed dairy farmer, sustained injuries when stopped at a red light. The vehicle he was driving was struck in the rear by a State Trooper's patrol vehicle. Ps sued D seeking damages for past and future pain and suffering and loss of earning capacity alleging that Ps sustained a serious injury. The Court of Claims rendered found D 100% liable for the collision and concluded that claimant sustained a significant limitation of the use of his thoracic spine due to a degenerative disc condition in the area of T7-T8 that was aggravated and became symptomatic as the result of the accident. The court awarded damages for past and future pain and suffering in the amount of $40,000 but made no award for his loss of earning capacity. P's wife was awarded $6,000 on her derivative claim. The court held that by the spring of 1997, P could have changed his lifestyle by giving up dairy farming and becoming a farming equipment salesperson and that his failure to do so constituted a breach of his duty to mitigate his damages. Ps appealed.