New York State Court of Claims

New York State Court of Claims

MARKEVITCH v. THE STATE OF NEW YORK, #2001-001-525, Claim No. 98510


The Court finds that claimant has not proved by a fair preponderance of the credible evidence a case for negligence and therefore dismisses the claim.

Case Information

EDWARD MARKEVITCH The original caption also named "Franklin Correctional Facility" as a defendant. The Court of Claims has no jurisdiction to hear claims against defendants other than the State of New York and certain other entities specified by statute; therefore, the Court, sua sponte, has amended the caption to reflect the only proper defendant here, the State of New York (see, Court of Claims Act § 9).
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The original caption also named "Franklin Correctional Facility" as a defendant. The Court of Claims has no jurisdiction to hear claims against defendants other than the State of New York and certain other entities specified by statute; therefore, the Court, sua sponte, has amended the caption to reflect the only proper defendant here, the State of New York (see, Court of Claims Act § 9).
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Susan Phillips Read
Claimant's attorney:
Shafran and Mosley, P.C.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Paul F. Cagino, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
August 7, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Edward Markevitch ("claimant") brought this claim against defendant State of New York ("defendant" or "the State") to seek damages for injuries that he sustained on May 4, 1998 while working as an inmate porter in the infirmary at Franklin Correctional Facility ("Franklin").

I. Testimony
A. Claimant's testimony at trial
Claimant testified that during the sixteen to eighteen months of his incarceration at Franklin, he worked as a porter in the facility's infirmary seven days a week (although only four days were required) from 8:00 a.m. until 2:30 or 2:45 p.m. He normally "just went about" his regular duties, which were to "empty garbage, take care of floors, sweep and mop up,"[1]
without direction, although he identified Correction Officers Alfred J. Favreau ("Favreau") and Michael Curtin ("Curtin") and Nurse Administrator Thomas Flynn ("Flynn") as infirmary personnel who were supervisors with authority to assign work to him. When claimant reported to work at the infirmary at 8:00 a.m. on May 4, 1998, he started his regular duties, but "then Officer Curtin told me that Mr. Flynn or Mr. Favreau wanted to see me on the old side of the infirmary.[2] They had something for me to do." Claimant found Flynn in a corridor of the old infirmary, where four or five desks of different sizes were obstructing this heavily trafficked hallway. Flynn told claimant "that these desks had to be moved as soon as possible. He wanted them done now. They were obstructing passage."
Claimant testified that when he asked Flynn "how the desks got there," he was told that "work control brought them there." Claimant described work control as "a group of guys that go around the facility doing different types of jobs that can't be done by the normal inmates working in that area. They go around repairing whatever has to be repaired--electrical, whatever--their job is to unload trucks, move furniture, that sort of nature." Claimant added that work control is comprised of ten to fifteen inmates on any given day, who perform work throughout the facility. Claimant had observed work control to have access to large six-foot hand trucks with straps "like moving companies would have."

He then asked Flynn "why he couldn't call work control to get enough men over here to do the job" because "the job looked a little too big just for two guys; they told me to get somebody to help me and there was only one other guy available at the time," inmate porter Oscar Covington ("Covington"). When asked by counsel if he said anything further to Flynn, claimant replied that he "objected from the beginning about doing the job; it just wasn't in my job title, you know; I was there as a porter." Claimant further testified that he considered Flynn's direction to him to move the desks an order, which he had no discretion to disregard except upon penalty of disciplinary action; that he had no experience with moving furniture as a civilian and had never previously moved furniture while working as a porter at Franklin; and that he had received no instruction or training or information about safety guidelines applicable to moving furniture.

When claimant subsequently approached Favreau and informed him that "Mr. Flynn told us we had to move, told me I had to move these desks out of the corridor," Favreau "more or less agreed to what Mr. Flynn said and he said, ‘Well, if he told you to move them, then move them,' you know. They're blocking the corridor. At the same time there was little offices there that they use for sick call, examining rooms. So they [the desks] were obstructing the traffic." When claimant's counsel asked him if he "voiced any objection" to Favreau about undertaking this job, claimant replied that "I just told him it was--that the job was just a little too large for us to handle." Favreau replied, "Well, you were told to do something, do it," which claimant again considered an order that he had no discretion to decline to follow except upon penalty of disciplinary action.

Claimant sought out Covington, who also "didn't agree with the job," to help him out. They first lifted a small, "fairly light" desk onto a four-foot hand truck, which they wheeled about 35 or 40 yards from the corridor in the old infirmary to the top of the basement stairway in the new infirmary. They removed the desk from the hand truck and took it downstairs to the basement, with claimant supporting the leading edge and Covington, the trailing edge.

Claimant and Covington next positioned a much larger desk on the hand truck. Claimant described this desk as "oak" and "a hardwood" desk. When he and Covington lifted this desk to position it "as best [they] could" on the hand truck, they realized it was heavy. They wheeled the hand truck from the corridor in the old infirmary to the top of the basement stairway in the new infirmary, removed the desk from the hand truck and started to slide it downstairs, with claimant supporting the leading edge and Covington, the trailing edge; however, claimant was unable to support the desk's weight, and the desk "broke free." Claimant lost his footing and the desk pushed him down the stairwell, which was about as wide as the desk was deep. He came to rest on his left side at the bottom of the stairway and injured his right leg.

On the date of this accident, claimant was very aware of his imminent release date. He did not fear that his failure to obey an order to move the desks on May 4, 1998 would adversely affect his scheduled release on May 21, 1998; however, "from that day I had seventeen days to go home and I didn't want to create no problems. I wanted to do it as easy as possible without any cube[3]
confinement, loss of rec[reation] or loss of privileges. When you're written up,[4] that's what they do. They take away your privileges and you're confined to your bed area. . . . I wanted time to pass as quickly as possible."
B. Covington's deposition testimony
According to Covington, he arrived at the infirmary late on the morning of May 4, 1998, having overslept, to find "everybody . . . running around, moving--moving things, desks, chairs" (DT-Cov 13).[5]
He "decided to go get something to eat" before starting to work (id.). When he "came out [of] the porters' little room" or "lounge," he asked claimant "What are we doing?" to which claimant replied, "Moving desks" (DT-Cov 14). Covington responded "I don't want to move no desks right now. I'm too tired, and I don't feel like doing nothing," and claimant "left, kept on doing his job"(id.), but subsequently returned and told Covington "You know I need help" (id.). Claimant told Covington that the desks had to be moved down to the basement (DT-Cov 17).
Covington testified that claimant and he carried a light desk down the stairs into the basement, then proceeded to move a heavier desk (DT-Cov 22-24). When asked if anyone else was in the area who might have helped move the heavier desk, Covington replied that there were other people present, but they did not want to help out although he asked them to do so (DT-Cov 24-25).

Covington testified that claimant and he carried the heavier desk, without benefit of a "truck or a hand dolly." When they reached the top of the stairway to the basement, he told claimant, "Just slide the table down the steps" (DT-Cov 25), but claimant said that he didn't "want to mess the table up. So, he said . . . ‘I'll get on the front end of the table, on the steps, down--go down a couple of steps. And . . . you just throw it over to me a little bit. So we lower it down" (DT-Cov 26). Covington described their subsequent conversation and actions and the subsequent accident as follows:
Q Was he in front of the desk?

A Yes.

Q So he was below you on the steps?

A Yes, I was up the top of the steps, the landing at the top. And he was like three or four steps down.

And we lowered--lowered it over. He--you know, so he could grab it.

Q And . . . did you go down any steps with it?

A Yeah, we went down like three steps.

Q And then what happened, if anything?

A And the desk was too heavy for us. [Claimant] couldn't hold it, you know, the weight, in the front.

So he tried to run, and beat the table down the steps, but I couldn't hold the table. It was too heavy for me. So, I had--I let go.

And the table went sliding down the steps. [Claimant] tried to run, and it just went on top of [him].
(DT-Cov 26-27).
Covington described his duties as a porter as sweeping, mopping, moving and, in general, doing what he was told to do (DT-Cov 8). He described "work crew" as "guys that move, like move heavy--heavy things. They come, you know, like--like some chairs come, the work crew comes and brings them--takes them off the truck. And they move whatever, around the building"

(DT-Cov 20). When asked if work crew was "a different job than porter," he answered that it was (id.).
C. Testimony of C.O. James Dumont ("Dumont") at trial
Dumont, a C.O. for twenty years and the Fire and Safety Officer at Franklin, investigated claimant's accident. In his opinion, the desk should have been lowered or carried--not slid--down the stairway, with two men supporting its weight at the leading edge, not one (see also, State's exh. B-1). Dumont further testified that the desk was fabricated from pressed wood, not oak, and that the desk's drawers were removable. This desk had seven drawers, three on each side and one in the middle (see, State's exh. E).
D. Favreau's testimony at trial
When Favreau arrived at work on the morning of May 4, 1998, he observed four or five desks blocking the hallway near his station in the old infirmary, where inmates checked into the clinic for sick call or doctor or dental call-outs. Flynn and he decided that these desks posed a safety hazard and should be moved as soon as possible, so Favreau talked to claimant about moving the desks, telling him "that we have more porters on the way; wait until everybody gets here, and then everybody can, you know, help carry the desks down the stairs." He had four inmate porters available to him, and he told each of them individually that "the desks had to be moved out of the hallway and brought down the stairs and for them to take their time but that it had to be done." At no time did any of the inmate porters complain to Favreau that the desks were too heavy or too large for them to move, or request additional equipment or help. According to Favreau, who was near his station at the time, "when they [the inmate porters] first started moving the desks, there were four," who loaded a desk onto a "cart" and left his area headed for the new infirmary.
Favreau did not routinely spend his shift sitting at a desk at his work station, but rather moved around his assigned area to carry out his security duties, to bring I.D. cards to the dental and X-ray departments and the doctors and nurses and to inspect rooms to make sure that they were clean. On this particular morning, he "was all over; it was a very busy morning" after the four inmate porters left his area with the desk, and he "was down one hallway, down to the dental area; then [he was] down another hallway to check out the sick call rooms, and then [he] had a minute" and went down a "completely different" hallway to the rest room. As Favreau left the restroom, Covington, who was "running through" the hallway, informed him of claimant's accident.

Favreau confirmed that the desk was fabricated from pressed wood, not oak, and was of the type ("Corcraft") commonly found within the prison system, which he had previously seen lifted and moved by two men without objection as to weight. Favreau described work control as "an area at Franklin . . . where inmates are assigned and there's a civilian in work control who[m] the inmates work for. It may be an electrician or a plumber or whoever, and they go out every day within the facility, within the fence of the facility, and they take care of whatever needs to be fixed." Favreau testified that he would not use work control to move desks, a task that he considered properly assigned to porters.

E. Flynn's testimony at trial
Flynn, the nurse administrator I of the infirmary at Franklin at the time of claimant's accident, testified that on May 3, 1998, new furniture was delivered to the infirmary and that the old furniture to be replaced was stored in a hallway overnight. On May 4, 1998, it was determined that "the best thing to do with the old furniture was to move it down to the basement where it would be protected from the elements and then we were going to let the other departments in the facility come look at the stuff and see if they could use it in their work areas." Flynn testified that he spoke to Favreau about having the desks moved to the basement.

Flynn may have also talked to claimant directly about moving the desks. He described claimant as a "great worker" who did not object to him that the desks were too heavy or too big for the porters to move or that additional equipment or help was required to carry out this task. Flynn further testified that he was easily accessible to claimant, and would have believed him had he objected on these grounds and would have acted to provide him additional help. He described the inmate porters as "handymen" and "helping hands," by which he meant that if he "had a menial task that needed to be done, that would be an appropriate thing to assign an inmate worker to [do] unless he said he couldn't do it. We wouldn't assign an inmate worker in the infirmary to be an electrician. We would assign an inmate worker in the infirmary to move something, to watch something."

F. Curtin's deposition testimony
Curtin was the C.O. on duty in the new infirmary on May 4, 1998 (DT-Cur 7-8, 11, 29-30).[6]
According to Curtin, "[w]hen [Flynn] came in that morning, he came through the new side [of the infirmary], said that when the porters come in, he would like them to move the desks down to the cellar, that were in the hallway. The porters came in, and I sent them over to see Tom Flynn" (DT-Cur 13). Curtin subsequently instructed claimant, Covington and a couple of other inmate porters whose names he did not recall to talk to Flynn (DT-Cur 15).
Curtin testified that two desks had been moved from the old infirmary into the new infirmary's basement prior to claimant's accident: claimant and Covington moved one of these desks; another two inmates moved another desk (DT-Cur 20). None of the inmate porters involved in moving the desks requested additional help from Curtin (
Curtin described an inmate porter's routine duties as mopping floors, cleaning windows, emptying garbage cans and moving furniture around as needed (DT-Cur 31-32). By contrast, work crew is "[a]nother area of the facility, they go around doing odd jobs around the jail, with civilian workers," including plumbing, electrical work and small carpentry or heavy lifting, if asked (DT-Cur 32). Work crew probably has "seven or eight civilians that are assigned, whether it be general maintenance, plumbing, electrical. And they have two or three inmates that they program with them, that have some kind of experience in the past, in that area. And they would go with that civilian. They're usually with a civilian. And they go as his assistants, doing work" (DT-Cur 33-34). As a result, the task of moving the desks from the old infirmary to the new infirmary on May 4, 1998 was "[n]ot necessarily" a job for work crew because "an area has its own porters. You use your own workers to do your own area" (DT-Cur 33).

After Covington alerted Curtin to claimant's accident, he and Nurse Collins rushed down the stairway to the basement and Curtin pushed the desk about three feet away from claimant (DT-Cur 40-43). More nurses arrived to tend to claimant, who "was kind of bunched up, holding his leg" (DT-Cur 46), and Curtin summoned an ambulance (DT-Cur 46-47;
see also, State's exhs. B-1, B-9; DT-Cur 24, 27).
II. Discussion and Findings
Inmates participating in work programs during incarceration do not receive the protections afforded by the Labor Law (D'Argenio v Village of Homer, 202 AD2d 883, 884). Defendant nonetheless owes a duty to exercise reasonable care to provide for their safety (Callahan v State of New York, 19 AD2d 437, affd 14 NY2d 665; see also, Maldonado v State of New York, 255 AD2d 630), although "[t]he mere happening of an accident carries with it no presumption of negligence on the part of the State [citation omitted]" (Fitzgerald v State of New York, 28 Misc 2d 283, 285). Moreover, "where an inmate fails to use ordinary care and pursues a dangerous course of conduct, he or she is required to take some responsibility for his or her own negligence [citations omitted]" (Martinez v State of New York, 225 AD2d 877, 878).
Claimant has the burden of proving the State liable by a fair preponderance of the credible evidence (
see, PJI 1:23). The trial court, in its capacity as trier of the facts, must view the witnesses and consider their statements upon direct and cross-examination in determining whether the witness is credible and the weight, if any, to be given to the evidence (see, PJI 1:8, 1:22, 1:41; see also, Johnson v State of New York, 265 AD2d 652; De Luke v State of New York, 169 AD2d 916); and the Court, in this instance, finds as follows:
(1) On May 4,1998, Flynn and Favreau assigned the inmate porters reporting to work in Franklin's infirmary, who numbered at least four, to move four or five desks from the hallway in the old infirmary, where these desks had been placed the previous day after the delivery of new furniture, to the basement of the new infirmary. The Court bases these findings on the testimony of Flynn and Favreau, which is consistent in relevant parts with the testimony of Curtin (DT-Cur 15, 20) and Covington (DT-Cov 13, 24-25). To the extent that claimant testified that only two inmate porters--he and Covington--were available to move any of these desks, the Court finds that such testimony, which is contradicted by the other testimony in the record, is not credible.

(2) Neither claimant nor any other inmate porter protested to Flynn, Favreau or Curtin that the individual desks were too heavy to be moved by the inmate porters, either working in pairs or altogether as a group of four or five, or that additional equipment (
e.g., larger hand trucks) was required to perform this work safely. The Court bases this finding on the testimony of Flynn, Favreau and Curtin, who denied that claimant or any other inmate porter lodged any objection with any of them about the feasibility or safety of this job. The Court also bases this finding on Covington's testimony that he objected to claimant (not Flynn, Favreau or Curtin) about moving the desks, but because he was "too tired" and did not feel like working (DT-Cov 14), not because he regarded the job as unsafe. The Court also notes that claimant, in his direct testimony, described his purported objection to Flynn more in terms of the propriety of assigning this particular work to the inmate porters rather than to work control (i.e., claimant's testimony that he "objected from the beginning about doing the job; it wasn't in my job title, you know; I was there as a porter"). The Court accordingly further finds incredible claimant's testimony that he did not object further or refuse to perform this work after his protests were supposedly rebuffed by Flynn and Favreau because he feared loss of privileges during the seventeen days remaining before his release from Franklin.
(3) The desk that claimant and Covington were moving down the stairway to the basement in the new infirmary when claimant was injured was a Corcraft desk fabricated from pressed wood, not "oak" or "hardwood" as claimant testified. The Court bases this finding on the testimony of Dumont and Flynn and review of the photographs, particularly State's exh. E. Moreover, the seven drawers in this desk were removable, based on Dumont's testimony and review of State's exh. E.

(4) Based on the testimony of Flynn, Favreau and Curtin, the Court finds that it was reasonable for Favreau and/or Flynn to have assigned the task of moving the desks to inmate porters rather than to work control, a cadre of civilian workers and inmates usually assigned to perform more skilled work throughout Franklin, such as plumbing or electrical work.

(5) The inmate porters in the infirmary at Franklin enjoyed considerable discretion as to how to carry out an assigned task. The Court bases this finding principally on Favreau's testimony in this regard, which is not contradicted by any other testimony in the record including claimant's.

(6) The sole, proximate cause of claimant's injuries was his (or his and Covington's) decision to slide (or partly slide), rather than lift or carry, the desk down the stairway without obtaining additional help and/or removing the drawers, a common sense way to reduce the desk's weight, while placing himself below and in front of the desk on the stairway where he was likely to suffer injuries if he could not bear the desk's weight, as he was required to do once Covington lowered the desk towards him.

III. Conclusion
Based on the foregoing, the Court finds that claimant has not proved by a fair preponderance of the credible evidence that negligence on the part of the State proximately caused the injuries that he sustained on May 4, 1998. Rather, claimant was injured because of his own actions, which entailed an inherent and obvious risk of injury. The Court therefore dismisses the claim, and directs the Chief Clerk to enter judgment accordingly. Any motions on which the Court previously reserved judgment or which were not previously decided are now denied.

August 7, 2001
Albany, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, quotations are from audiotapes of the trial on liability.
[2]At the time of this accident, a newly built addition to the infirmary at Franklin had recently opened. Claimant and the other witnesses consistently referred to the original infirmary building as the old infirmary and to the addition as the new infirmary.
[3]At Franklin, a medium-security prison, inmates were housed in dormitories in which the floor space was partitioned into individual or shared sleeping compartments referred to as cubicles, or "cubes."
[4]Claimant is referring to issuance of a misbehavior report (see, 7 NYCRR Subchapter A [Procedures for Implementing Standards of Inmate Behavior], Parts 250-254).
[5]"DT-Cov" followed by a number(s) refers to the corresponding page(s) in the transcript of Covington's deposition, conducted on September 2, 1999 (claimant's exh. 3).
[6]"DT-Cur" followed by a number(s) refers to the corresponding page(s) in the transcript of Curtin's deposition, conducted on September 2, 1999.