New York State Court of Claims

New York State Court of Claims

SKOBBEKO v. THE STATE OF NEW YORK, #2000-017-610, Claim No. 80735-A


Synopsis


Claim against State Police for use of excessive force during an arrest is dismissed upon the finding that claimant's injuries were incidental to the appropriate use of force.

Case Information

UID:
2000-017-610
Claimant(s):
MARC A. SKOBBEKO and RITA SKOBBEKO
Claimant short name:
SKOBBEKO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
80735-A
Motion number(s):

Cross-motion number(s):

Judge:
ANDREW P. O'ROURKE
Claimant's attorney:
Joseph G. Scali & Associatesby: Joseph G. Scali, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Dewey Lee, Esq., AAG
Third-party defendant's attorney:

Signature date:
November 29, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant Marc Skobbeko alleges that he was assaulted by State Police officers on March 16, 1990 and that other members of the State Police were negligent in failing to prevent the assault and failing to provide timely medical treatment. Claimant's mother, Rita Skobbeko, alleges that she suffered emotional distress from viewing the alleged assault and from the alleged failure of the State Police to notify her of her son's whereabouts subsequent to his arrest.

Claimant testified that, on the date in question, after having dinner with his parents with whom he resided in the Town of Chester, Orange County, he went out at about 8 p.m. to a local strip mall to "hang out" with his friends. Between 8 and 11 p.m., he drank about three beers while at the mall and then left to go home. Claimant advised that he drove on Route 208 towards the Village of Monroe for about five minutes when he saw, in his rearview mirror, a State Police vehicle turn around and approach him from behind, activating his lights. Claimant, however, continued to drive, stating that he wanted to make it home first, about three miles away, because he was "nervous" because of a "prior incident" with the State Police (Vol I, 44). He also conceded that the fact that he had been drinking, and was only nineteen years old, was a factor in his being nervous. The prior incident arose out of his vehicle having been found at the side of the road in a ditch, and did not involve any physical altercation.

Claimant stated that he continued to drive home, taking Cromwell Hill Road to Doug Road to Ferndale Court. On Cromwell Hill Road, he noticed a police vehicle in the middle of the road, over the double yellow line. He did not stop, but "simply slowed down and went around the car" (
id., 50). He testified that he drove home, pulled into his driveway, and got out of his car and started walking up the driveway towards the front door. Asked if he saw any police officers, claimant stated that there were "a lot of cars and lights" behind him (id., 51). Claimant made it up the corner of the driveway and the path to the door when he was "tackled" by some police officers (id.). He asserted that he fell to the ground immediately and did not resist. The front part of his body struck the gravel and pavement driveway, although claimant denied that his face came into contact with the ground at all. Then, claimant stated, he was picked up and dragged to a State Police vehicle, handcuffed, and thrown into the back seat.
Claimant alleged that there were two troopers in the car with him on the trip to the barracks, Officers Duffy and Officer Warnock. One was driving and one was in the back seat. Claimant's testimony – central to his claim – was that he was punched in his face, head and torso by the trooper in the back seat with him. He described it as "extreme beatings" (
id., 57) and claimed that he just tried to cover up, his hands and feet being restrained.
When he arrived at the barracks, claimant was led inside and restrained to the wall. He alleged that the beatings continued while he was at the barracks, beatings that were severe enough to cause him to lose consciousness. Claimant advised that he was taken to a hospital at about 3 a.m., although the emergency room record from Arden Hill Hospital (Exhibit 1A) reflects that he arrived there at 2:20 a.m. The record notes that claimant's left eye and cheek were red, he had swollen abrasions on his arms and there were contusions on his neck and abrasions on his back. The record further states that claimant was alert, with alcohol on his breath, and that he denied being injured. Claimant did not receive any treatment at the hospital. After a physical examination, skull X rays were recommended, but claimant refused the X rays and signed himself out of the hospital.

Claimant was returned to the barracks, where he appeared before a judge. After bail was set at $50,0000, claimant was taken to the Orange County Jail, where he arrived at 11 a.m. on March 16
th. The records from the county jail note that claimant was complaining of pain on the left side of his jaw, the left side of his face was swollen, his left orbit was bruised and his left eye swollen, and there were numerous abrasions on his right arm, shoulder and chest and his left elbow (Exhibit 2). An X ray report dated March 16, 1990 showed no skull or jaw fractures (id.).
On cross-examination, claimant maintained that he had not exceeded 55 m.p.h. during the chase, but at his deposition he had stated that he was going 70 m.p.h. He had also testified at his deposition that, after being tackled in the driveway, he was punched and kicked for a few minutes by a group of officers.

Claimant's mother, Rita Skobbeko, testified that she was at home on the evening of March 15, 1990, just starting to fall asleep, when she was awakened by flashing lights and "yelling noise" (Vol I, 14). She ran downstairs and opened the front door and saw "a lot of – the State Police and my son was yelling, ‘stop, stop, please stop.' And I started yelling, ‘what's going on, stop, stop' " (
id., 15-16). She saw him get tackled and then taken into custody. She claimed that she was yelling "what's happening" (id., 21) but that nobody responded to her, that she was unable to get any information over the telephone during the night, and that it was not until about 11 o'clock the next morning when she went to the barracks and was informed that her son had been taken to the county jail.
Although Mrs. Skobbeko agreed with the word "tackled (
id., 20)," and stated that she saw a "bunch of bodies thrown together (id., 30)," she did not testify to having seen her son punched, kicked or struck by any police officer.
State Trooper Gordon Warnock testified that he was riding in a patrol vehicle driven by Trooper James Duffy when the vehicle in front of them at a Stop sign, a Mustang, made a left turn onto Route 208 at a high rate of speed, squealed its tires, and subsequently drove in excess of the 55 m.p.h. speed limit. They turned their vehicle's lights on, attempting to pull over the Mustang, but there was no indication that the driver would comply. The two vehicles proceeded to a traffic signal in the village of Monroe, and the patrol car pulled alongside the left side of the Mustang. Officer Warnock stated he shone a bright light into the Mustang and motioned for the driver to pull over and the driver indicated that he understood. After the light turned green, the Mustang made a right turn and pulled onto the gravel shoulder. According to the officer, he exited his vehicle and took about three steps towards the Mustang when it took off again at a high rate of speed. He got back in the patrol car and they took after the Mustang and radioed to their barracks that they were in pursuit. At some point in the chase, they encountered a Blooming Grove police vehicle with its lights on, straddling the center line in an attempt to block the roadway. The Mustang drove around this police car, to the right, off the pavement, and continued. Officer Warnock described a chase at speeds up to 70 m.p.h over many roads in the vicinity, much more than was testified to by the claimant, including back through the intersection where they were originally stopped at the traffic signal. Another State Police vehicle was set up as a roadblock on Cromwell Hill Road, perpendicular to the road, with its lights on, but the Mustang drove around this vehicle, on a earthen embankment, narrowly missing a trooper who was outside the vehicle motioning with a flashlight. Then, after two more turns, the Mustang turned into the Skobbeko driveway.

Officer Warnock testified that he immediately exited from his vehicle and yelled at the claimant to stop, that he was under arrest. Claimant, however, did not stop but "continued to run into the woods" (
id., 107). The officer stated:
"I caught up to him from behind and jumped on him and tackled him to the ground, at which time I tried to handcuff him. He was flailing his arms and legs and contorting his body. I tried to get control of one arm. Momentarily after that, Trooper Duffy was right behind me. With the assistance of Trooper Duffy we were able to place the handcuffs on him and place him under arrest." (id., 107-108).
Claimant continued to struggle after being handcuffed, so his legs were restrained by flex cuffs applied to his ankles. Claimant was then lifted by Warnock, Duffy and two other troopers and carried to the patrol car, in which he was driven to the barracks. Officer Warnock advised that nothing unusual transpired during the ride to the barracks. He stated that nobody hit claimant while he was in the vehicle, although he did notice that claimant had a split lip and a bruise on his cheekbone, which he assumed was from "the tackle in the woods" (id., 111), by which he meant the wooded area in back of claimant's house.
Officer Duffy's testimony was, in all essential respects, the same as that of Officer Warnock, including claimant driving at speeds up to 70 m.p.h., crossing double yellow lines, evading the roadblocks and running a red light. After claimant was tackled by Officer Warnock, Duffy helped to apply the handcuffs, during which claimant was rolling on the ground, throwing out his arms and legs in an attempt to avoid being handcuffed. He stated that after the claimant was placed in the police vehicle, he told Mrs. Skobbeko that her son was under arrest and that she should come to the Monroe barracks with her attorney. He denied ever punching or kicking the claimant, at any time during the evening's events.

Officer Nick Solfaro of the Blooming Grove Police Department testified that he was a passenger in the vehicle that was almost struck by claimant's vehicle on Museum Village Road. He and his partner heard of the subject chase on their radio, and they heard sirens approaching and turned on their overhead lights. He stated that his partner, Officer Smith, turned the vehicle in an attempt to stop the vehicle that was being pursued by the State Trooper, but the driver was able to get around them.

State trooper Stephen Happ was a passenger in a patrol vehicle driven by Officer Ronny Dunn when they heard of the chase on their radio. After getting ahead of the two principal vehicles, they put their lights on, blocking the road (the officer did not remember the name of the road), and exited from the vehicle. As testified to by Trooper Warnock, the Mustang did not stop, but instead drove around the police vehicle, almost striking Officer Dunn in the process.

There is no doubt that the State Troopers involved in the events in question used force against the claimant. Nevertheless, a police officer is allowed to use a degree of force that is reasonable and appropriate under the circumstances when effectuating a lawful arrest (
see, Wester v State of New York 247 AD2d 468, Higgins v City of Oneonta, 208 AD2d 1067 lv denied 85 NY2d 803; Arnold v State of New York, 108 AD2 1021 appeal dismissed 65 NY2d 723; Stein v State of New York, 53 AD2d 988), and the application of force under such circumstances will not give rise to liability.
Here, the determining factor is one of credibility; i.e., whether the account given by the officers or that given by the claimant more accurately reflected the actual events of March 16, 1990. The court finds that the officers' testimony was credible and the claimant's testimony was not, a determination that is based not only on the fact that claimant was admittedly drinking and likely intoxicated to some extent, but also on the medical and photographic evidence, which is consistent with the officers' accounts and inconsistent with the claimant's testimony. Someone who had been beaten, punched and kicked by a group of police officers over the time periods alleged by claimant, beaten sufficiently to have lost consciousness, would appear much more severely injured than claimant appears in the photographs, and would not have been examined and released from a hospital emergency room with essentially no treatment for contusions and abrasions. The testimony of Troopers Warnock and Duffy that claimant was tackled in his yard, struck his face on the ground, and wrestled with the officers before they could secure him was, on the other hand, entirely consistent with claimant's condition as reflected in the photographic evidence and in the medical records. Accordingly, there is no basis for a finding that excessive force was used.

Moreover, there was also no evidence that claimant was not afforded the opportunity for prompt medical treatment, or that claimant's mother has any valid cause of action arising out of the events described at trial.

Accordingly, the court finds that the claim must be dismissed in its entirety, and the Chief Clerk is directed to enter judgment accordingly.


November 29, 2000
White Plains, New York

HON. ANDREW P. O'ROURKE
Judge of the Court of Claims