New York State Court of Claims

New York State Court of Claims

KOSINSKI v. THE STATE OF NEW YORK, #2000-028-0012, Claim No. 97581


Prison inmate failed to prove that correction officers used greater force in excess of that that authorized by Correction Law §137(5) and 7 NYCRR §251-1.2, and thus the State was not liable for his injuries.

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:
Defendant's attorney:
BY: Kevan Acton, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 30, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

This claim arose on September 16, 1997 at Coxsackie Correctional Facility, when, according to claimant, he was assaulted by two correction officers. At trial, claimant testified that the two officers came to his cell to transport him to a Tier 2 disciplinary hearing. Officer Nolan asked him to step up against the wall and put his hands on the back of his head and, after the cell door was opened, to back out of the cell. This procedure is one typically used to remove an inmate from his cell.
While claimant was being pat-frisked outside the cell, he saw Officer Rogers enter the cell. According to claimant, he asked permission to move off the wall so that he could see into the cell, to find out if Rogers was "planting" anything. According to Officer Nolan, however, claimant made no request to move from the wall but, instead, abruptly moved away and went into the cell. Officer Rogers testified that he had entered the cell to conduct a cell and window bar search when he heard his fellow officer say, "Get back up against the wall." Rogers then saw claimant moving toward him and, fearing for his safety, pushed claimant back out of the cell.

A physical confrontation then ensued. According to claimant, Officer Rogers landed most of the blows, while Officer Nolan kicked him, and the abuse continued after claimant was restrained and in handcuffs. Nolan and Rogers stated that they used an upper body hold to take claimant down to the floor. Use of force reports relating this incident were placed into evidence (Exhs. 1 and 4) and the accounts therein are, as one might expect, consistent with the officers' testimony. The injuries of which claimant complains – reddened upper back, shoulders and mid-back, a bruise on the left chest wall, and a two inch scratch on his right cheek – are also consistent with the officers' description of the struggle.

Correction officers are authorized to use "all suitable means" to defend themselves, maintain order, enforce discipline, and prevent escapes, and this may include physical force against inmates "in self defense, or to suppress a revolt or insurrection" (Correction Law §137[5]). The relevant regulation of the Department of Correctional Services (DOCS), 7 NYCRR §251-1.2, directs employees to use "[t]he greatest caution and conservative judgment" in determining whether physical force is necessary and, if so, the degree of force necessary. "Where it is necessary to use physical force, only such degree of force as is reasonably required shall be used."
Where correction officers (or others empowered by governmental entities to use force in carrying out their duties) use more force than is necessary or reasonable under the circumstances, the cause of action is an intentional tort, for which the employer may be liable under the theory of respondeat superior (
Jones v State of New York, 33 NY2d 275, 279). To determine whether use of force was necessary in a specific situation and, if so, whether the force used was excessive or unreasonable, a Court must examine the particular factual background and the circumstances confronting the officers or guards (see, e.g., Lewis v State of New York, 223 AD2d 800; Quillen v State of New York, 191 AD2d 31; Brown v State of New York, 24 Misc 2d 358). Often the credibility of witnesses will be a critical factor in these determinations (Davis v State of New York, 203 AD2d 234; McKinley v State of New York, decision, Claim No. 97500 & 97648, dated Sept. 22, 2000, Lebous, J.).
While the Court accepts that claimant in this action was legitimately concerned and wanted to see what was occurring in his cell, it also accepts the testimony of Officers Nolan and Rogers that claimant suddenly moved from his position next to the wall and returned to the cell without explanation or permission. Under these circumstances, it was reasonable and responsible for Officer Rogers to attempt to move him back out of the cell and, when a struggle began, for the two officers to subdue claimant by using an upper body hold in order to restrain him. Claimant's testimony that he was kicked and subjected to additional, unnecessary assault after he was handcuffed was neither credible nor supported by evidence of his physical condition.

Inasmuch as claimant has failed to prove by a preponderance of the credible evidence that the physical force exerted on him on September 16, 1997 was more excessive than that permitted by law, the claim is dismissed.

Let judgment be entered accordingly.

November 30, 2000
Albany, New York

Judge of the Court of Claims