New York State Court of Claims

New York State Court of Claims

THIESEN v. THE STATE OF NEW YORK, #2000-019-012, Claim No. 99199


State trooper provided Claimant's home address to an individual despite being told by Claimant he feared of reprisal from this person. Claimant was assaulted at home by this individual. Claimant opened front door for individual which the Court found unreasonable in light of testimony that he was concerned for his safety. Liability was apportioned equally between the parties

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):

Claimant's attorney:
LITE & RUSSELLBY: Michael J. Montgomery, Esq., of counsel
Defendant's attorney:
BY: Alan B. Berkowitz, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 3, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

Raymond J. Thiesen brings this Claim for injuries he sustained as a result of an assault which occurred on April 19, 1998, at his home located at 26 Lincoln Avenue, Islip Terrace, New York. The trial of this Claim occurred on April 17, 2000, and this Decision addresses the issues of liability and damage.

On the weekend of April 18 and 19, 1998, a Saturday evening, Sunday morning, Claimant, Raymond J. Thiesen, then 19 years old, decided to have a little get together with his high school friends at his residence, the home of his mother Mary Thiesen. Conveniently for the Claimant, Mary Thiesen was absent and vacationing in Florida at the time. Incredibly, according to the Claimant, there was only one twelve pack of Budweiser Light as available refreshment for the ten to fifteen of Claimant's high school friends who were in attendance. At approximately 11:30 p.m. on April 18, 1998, enter Amanda Kaufman, then 17 years old, in the company of several of the Claimant's high school friends including Mark Taramina. Sometime after Amanda's arrival she used the Claimant's telephone to make several phone calls. Sometime between 12:30 and 1:00 a.m., Claimant received a call for Amanda, and shortly thereafter a white vehicle pulled into the Claimant's driveway and Amanda left the party with the occupant of that vehicle.

Sometime after 1:00 a.m. the Claimant testified that the party broke up and only the Claimant and two of his friends remained to clean the residence. At approximately 1:30 a.m. the Claimant received a call from a Patrick J. Hickey who identified himself as Amanda's stepfather.[1]
While the testimony of the Claimant and Mr. Hickey start to vary from this point on, essentially the Court believes that when the Claimant received this first phone call he was asked if Amanda was there. Claimant testified that he said Amanda was not present. Hickey then told the Claimant to "get her"[2] to which the Claimant again responded that she was not present at the residence. Hickey then told Claimant to "get her or it's your ass" and upon hearing this the Claimant testified that he hung up the phone. Hickey then called the Thiesen residence again and an argument ensued with threats and vulgarities being exchanged between the Claimant and Hickey. While the Claimant was less than respectful to Hickey and, I am sure, as aggressive toward Hickey as Hickey was toward the Claimant, the Claimant was fearful that there would be a physical altercation if Hickey came to his residence. However, when Hickey threatened to come over and look for himself, the Claimant nonetheless said "come on over". Claimant subsequently gave Hickey a false address.

Sometime thereafter the Claimant received another phone call this time from his high school friend Mark Taramina. Mark was at Amanda's home and again asked the Claimant for his address saying that Amanda's parents were concerned about her whereabouts. Claimant testified that he gave his friend Mark a false address again because he was fearful of a confrontation with Hickey if he should appear at the Claimant's home.

Sometime thereafter the phone rang again and this time the Claimant decided not to answer. The answering machine, however, responded and recorded a message from the New York State Police instructing the Claimant to call them back at their substation. After hearing the message, the Claimant called the substation and spoke to a Trooper Larson. The Claimant explained all of the foregoing to Trooper Larson and further explained that he gave a false address to Hickey because he was fearful of reprisal or an assaultive confrontation if Hickey came to his home. At this point, however, Claimant was unsure whether the Troopers already had his real address or whether he gave the address to them. However, the Court believes that during this conversation the Claimant gave his real address to Trooper Larson.

Shortly thereafter, around 2:00 or 2:30 a.m., the Claimant heard a pounding at his front door. Believing that it was Hickey, there to assault the Claimant or at the very least to continue their argument, Claimant went to the front door with an unloaded rifle. Claimant placed the rifle to the right-hand side of the door frame and opened the door. Claimant testified that he never got a chance to raise the rifle since as soon as he opened the door the Claimant was hit in the face by Hickey; thrown off his front porch onto the pavement below; hit several more times in the face; and had his head and face repeatedly pushed into the concrete. As a result of this altercation the Suffolk County Sheriff's Department subsequently charged Patrick J. Hickey with the assault of the Claimant. Claimant was treated and released that morning, receiving nine stitches in the area of his right eye, various scrapes and bruises, and two black eyes. Claimant still suffers from some visible permanent scarring, albeit minimal, around the right eye.

Mary Thiesen returned from Florida, Sunday afternoon April 19, 1998, and was greeted upon her arrival by her estranged husband and told of the events that transpired the evening before. On April 20, 1998, she took the Claimant to the New York State Police substation located at 3045 Sunrise Highway, Islip Terrace, to show the Troopers the result of their handiwork in divulging her son's address to Hickey. Mrs. Thiesen, a most credible witness, was informed by the Trooper on duty that it was Trooper Larson's voice on the answering machine tape which she played for the Troopers. She was also informed that Trooper Larson should not have involved himself since it was outside of his (New York State Police) jurisdiction. Rather, the matter should have been referred to the Suffolk County Sheriff's Department. While at the substation Mrs. Thiesen also observed a file sitting on a desk, in plain view, on which was clearly written the address of the Claimant, Raymond J. Thiesen. When she told the Trooper that her address was laying right there for the world to see, including Patrick Hickey the evening before, she asked for permission to photograph the same. While permission was given initially, when she returned with her camera that permission was revoked and the file with her address had been removed.

The Claimant also called as a witness Trooper Scott Larson a 6 ½ year veteran of the New York State Police who unfortunately has no recollection of these events. Consequently, he could not confirm or deny the Claimant's testimony and was of no assistance to the Court in trying to determine factually what occurred in the early morning hours of April 19, 1998. However, he did testify that this matter was not within the jurisdiction of the New York State Police, and should have been referred to the Suffolk County Sheriff's Department. The Trooper identified his voice on the Thiesen answering machine tape and acknowledged that he did leave the following message:
Hello, this call is for Ray. This is the State Police calling in regards to Amanda. If you are home and you can hear this, I strongly suggest you pick up the phone so that I can talk with you. If not, the phone number here is 277-6191. Amanda's parents are here and they are a little concerned. I'd appreciate a call back as soon as you possibly can. Thank you. Good bye.
(Cl. Ex. 4).

Patrick Hickey apparently having had enough of Raymond Thiesen, failed to appear at trial and, by agreement, the parties presented his deposition to the Court as Claimant's Exhibit 7. From a review of the deposition the Court finds that Patrick Hickey did have concern for Amanda Kaufman. After she originally called the Kaufman residence in the late evening early morning hours of April 18-19, 1998, Hickey and Mrs. Geraghty (Amanda's mother) were concerned that Amanda might be intoxicated and in trouble. By entering *69 on their telephone, they were able to get the phone number of the Thiesen residence. Hickey testified that he subsequently called the Claimant and insisted on talking to Amanda. He confirmed that the tone of the conversation during the multiple phone calls between he and the Claimant escalated and that threats and vulgarities were exchanged liberally. From the deposition testimony of Hickey, and the Claimant's testimony, it appears to the Court that both the Claimant and Mr. Hickey treated each other with the same minimal degree of respect and common courtesy - and on these facts neither one deserved more.

Having genuine concern for Amanda Kaufman, Mr. Hickey and Mrs. Geraghty went to State Police Barracks satellite station located on Sunrise Highway in Islip Terrace, hoping that the State Police might help them locate Amanda who they believed may be in trouble. Mr. Hickey testified that he was present when the State Police made the call to the Claimant's residence and was present when the Claimant called back and spoke to Trooper Larson. While Mr. Hickey was uncertain whether Trooper Larson directly gave him the address; spoke loud enough for him to hear it; or simply left the address on the desk from which they could observe the same, one thing remains crystal clear: Patrick Hickey and Mrs. Geraghty arrived at the State Police substation without the Claimant's address, but a short time later left the substation with the address in hand. Hickey further testified it was understood by Trooper Larson that with the Claimant's address in hand, Hickey would personally visit Claimant's residence to determine if Amanda was present.

From the foregoing, the Court has no trouble concluding that the Claimant and Patrick Hickey were involved in a rapidly developing and heated feud over Amanda's whereabouts. Hickey went to the New York State Police substation lacking the Claimant's address. The New York State Police were advised of the circumstances and the heated nature of this situation both by Mr. Hickey and by the Claimant. Moreover, the Court is satisfied from the nature of the message left on the answering machine that Trooper Larson was aware of the circumstances and the tension between these parties. The Court believes that after the Claimant returned the Trooper's call and advised of his problems with Hickey and his fear of reprisal, Trooper Larson should have done one of two things: (1) refer the matter to the Suffolk County Sheriff's Department, or (2) take it upon himself to visit the Thiesen residence to investigate. Rather, Trooper Larson, either directly or indirectly, gave the Claimant's address to Hickey knowing full well that Hickey, in his search for Amanda, would visit the Claimant's residence. That act by Trooper Larson set in motion the chain of events which led to the assault of the Claimant by Hickey, resulting in the Claimant's injuries.

Claimant's theory of liability is that in light of the aforementioned circumstances a special duty existed between the police and Claimant. It is well-settled that "[t]he general rule in New York is that the State, acting in its governmental capacity, cannot be cast in damages for its failure to furnish police protection to a particular individual [citations omitted]" absent a special duty. (
Drake v State of New York, 97 Misc 2d 1015, 1019, affd 75 AD2d 1017, lv denied 51 NY2d 702). The elements of a special relationship or duty include: "(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking [citations omitted]." (Cuffy v City of New York, 69 NY2d 255, 260). Here, the facts prevent a finding that either the first or last element existed, since Trooper Larson never made a promise of assistance to Claimant and on which Claimant relied. Consequently, no special duty was owed to the Claimant by the Defendant.

However, liability may be imposed "[w]here affirmative police action is so integrally related to the sequence of events leading to the claimant's injury that it may be said that the action itself created the danger." (62A NY Jur2d, Government Tort Liability, § 147;
Drake v State of New York, 97 Misc 2d 1015, 1019; Jones v County of Herkimer, 51 Misc 2d 130, 136; Nelson v City of New York, 100 Misc 2d 309, 312). Accordingly, the proper query for this Court is: "[w]hether the defendant has gone so far in what he has actually done, and has got himself into such a relation with the [claimant], that he has begun to affect the interests of the [claimant] adversely, as distinguished from merely failing to confer a benefit upon him." (Prosser and Keeton, Torts § 56, at 375, [5th ed]; see also, Zibbon v Town of Cheektowaga, 51 AD2d 448, 450). On this basis, the Court finds the State must answer for Trooper Larson's actions. Possessing full knowledge of the potentially explosive situation at hand, Trooper Larson's actions in providing Hickey with Claimant's address are viewed by this Court as going beyond "withholding a benefit, but positively or actively in working an injury". (Moch Co. v Rensselaer Water Co., 247 NY 160, 167; Schuster v City of New York, 5 NY2d 75). The direct and affirmative action of Trooper Larson did for Hickey and the Claimant what they could not, or would not, do for themselves - it brought them face to face creating the danger that foreseeably resulted in injury to the Claimant.

Prior to trial, the parties stipulated the Court would determine damages based upon the evidence and testimony presented trial; the medical records; photographs; the damages alleged in the Verified Bill of Particulars; and the Court's examination of the Claimant's scar at trial. Based upon the foregoing, the Court finds Claimant suffered the following injuries:

2 lacerations to right cheek, under right eye, 1 inch long each, requiring a total of 9 stitches;
Multiple swollen contusions/lacerations to face;
Bilateral ecchymosis around eyes;
Soft tissue swelling of both orbits;
Ecchymosis right axilla;
Bilateral subconjunctive hemorrhages;
Extensive abrasions left hip area;
Pain & Suffering.

No plastic surgery was performed that evening, nor is any anticipated. Moreover, the Court viewed Claimant's scar and finds that scarring under the right eye has healed well and, upon close examination, is barely visible. This is Claimant's only permanent reminder of the events of that evening. Otherwise, there was minimal testimony as to Claimant's actual pain and suffering and all other contusions and lacerations have long since resolved.

However, this court finds that Claimant bears a substantial degree of responsibility for his own injuries. When Hickey arrived at Claimant's residence, Claimant should have refused to answer the door and summoned help, either from the police or from the house guests that remained asleep upstairs, particularly in view of his testimony that he was fearful of reprisal or an assaultive confrontation with Hickey. Instead, Claimant chose to engage Hickey in a face to face, or rather face to fist, confrontation. As such, this Court finds Claimant's act of opening the door with full knowledge that Hickey was on the other side to be an unreasonable invitation to the assault and injury that followed. (
Ast v State of New York, 123 Misc 2d 200, affd 106 AD2d 909, affd 66 NY2d 998). Consequently, the Court concludes that Claimant is 50% responsible for his own injuries.

The Court assesses Claimant's past pain and suffering at $10,000.00 and the scarring at $5,000.00. However, liability was apportioned 50 percent attributable to Defendant and 50 percent attributable to Claimant. Accordingly, Claimant is entitled to recover $5,000.00 for past pain and suffering and $2,500.00 for scarring, for a total award of $7,500.00.


August 3, 2000
Binghamton, New York

Judge of the Court of Claims

Mr. Hickey was actually the boyfriend of Amanda's mother, Donna Geraghty.
Unless otherwise indicated, all quotations are from the Court's trial notes.