New York State Court of Claims

New York State Court of Claims

PAEZ v. New York, #2000-010-017, Claim No. 92556


Inmate hit by van did not establish negligence.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
SONIN & GENIS, ESQS.By: Robert J. Genis, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Michael Rosas, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 30, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for personal injuries that he allegedly sustained on October 17, 1994 when, during his incarceration at Sing Sing Correctional Facility ("Sing Sing"), claimant was jogging and a van, driven by a correction officer, allegedly backed up into claimant.
The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified through an interpreter that, for one to two weeks, prior to the alleged accident, he jogged daily on a two lane vehicular roadway covering the perimeter of the grounds, between the edge of the buildings and the fence. Claimant explained that inmates were permitted to use the roadway for jogging because the track was under renovation. Claimant always jogged four to five feet from the building as he approached the alley behind the mess hall. According to claimant, as he jogged north behind the mess hall on the morning of October 17, 1994, he was hit in the right side of his back by a van that was backing up from the alleyway between the buildings and onto the roadway. There were several other inmates jogging in the vicinity. Claimant continued jogging and then fell to the ground. The van proceeded ahead in a northerly direction. Claimant remained on the ground for 15 minutes before he was assisted by several correction officers. Claimant testified that, prior to the alleged impact, he did not see the van nor hear the van sound its horn before moving in reverse.

Claimant was aware that vehicles used the road and backed out onto the roadway from their parking positions, in the alleyway next to the mess hall, before proceeding ahead.

Correction Officer Leo Corbie testified that on October 17, 1994, he transported two inmates, by van, from the Tappan section to the "State Shop"at Sing Sing (T:53).[1]
He parked his van in the alleyway next to the mess hall. The width of the alleyway was approximately 25 feet and too narrow for a U-turn, so he proceeded in reverse onto the road and then turned the wheels before proceeding forward.
Corbie was aware that inmates jogged in the area and that there was pedestrian traffic in the alley. Corbie testified that before moving reverse, he observed three inmates, at a distance of approximately 45 feet, running northerly, approaching the mess hall. Corbie sounded his horn before backing up onto the roadway and was "creeping backwards" until the joggers passed the van. Corbie maintained that the van did not hit claimant (T:59).

Five minutes after leaving the area, Corbie was directed to return to the scene of the alleged accident. Corbie observed claimant on the ground. Corbie testified that he completed a memorandum about the incident and possibly another report; however he had not seen any reports since their preparation. Corbie testified that he also believed that the inmates riding in the van and those jogging with claimant had given statements, but he was not sure whether they had been reduced to writing.[2]

It is well established that "[t]he State just as any other party *** is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived." (
Flaherty v State of New York, 296 NY 342, 346) and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see, Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233,241).
The State, however, is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (
see, Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874). In order to prevail on his claim, claimant must show that: defendant was negligent, such negligence was a proximate cause of the accident, and claimant sustained injuries as the result of the accident (see, Bernstein v City of New York, 69 NY2d 1020, 1021-22; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519).
Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that Corbie was not negligent.
Corbie was aware that inmates jogged in the area and that there was pedestrian traffic in the alley. He observed claimant and two others jogging toward the mess hall; therefore, before moving in reverse, Corbie sounded his horn. He then moved at a "creeping" speed (T:59). The Court finds that Corbie was a very credible witness and that his conduct was not negligent. The Court did not find claimant's testimony to be credible, forthright or convincing. Accordingly, the Court finds that claimant has failed to meet his burden of establishing that defendant was negligent and that such negligence was a proximate cause of his alleged injuries. Rather, the Court finds that claimant's account of the alleged accident was wholly fabricated.
Defendant's motion to dismiss, upon which decision was reserved, is now granted.


May 30, 2000
White Plains, New York

Judge of the Court of Claims

[1]All references to the trial transcript will be preceded by the letter "T".
[2]The Court did not draw an adverse inference from Corbie's failure to have a copy, at trial, of the accident report or any written statements from the two inmates jogging with claimant (see, Cidieufort v New York City Health & Hosps. Corp., 250 AD2d 720; Scaglione v Victory Mem. Hosp., 205 AD2d 520). It was not sufficiently established that such documents were still in existence and there was no proof that they had been the subject of either a discovery demand or a subpoena. Nor was an adverse inference warranted by defendant's failure to call any inmate witnesses to testify as it was not established that such witnesses would naturally be expected to provide noncumulative testimony favorable to defendant (see, People v Gonzalez, 68 NY2d 424).