New York State Court of Claims

New York State Court of Claims

BRISMAN v. THE STATE OF NEW YORK, #2001-030-502, Claim No. 097185


Pro se
prisoner's claim alleging assault by correction officer manning gate dismissed.

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):

Thomas H. Scuccimarra
Claimant's attorney:
Richard Brisman - Pro Se
Defendant's attorney:
Elyse Angelico, Esq.
Third-party defendant's attorney:

Signature date:
August 20, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Richard Brisman, the Claimant herein, alleges that he was injured by a Correction Officer while in transit from the mess hall through the connecting gates to his cell block. He seeks recovery from the state for the alleged incident. Trial was held at the Sing Sing Correctional Facility (hereafter Sing Sing) on July 27, 2001.

Claimant testified that on September 1, 1997 at approximately 7:45 am he was coming back from the mess hall, approaching the Officer in Charge's room. As directed by Correction Officer V. Hereford, he stopped until she told him he could pass. He started walking, she told him to come back again. He inquired as to why she let two other prisoners pass; she did not answer. He testified that she then slammed the gate purposely on his back, causing him to stumble to the floor, and injuring his back and arm. Claimant reported the incident to Correction Officer F. Eaves, who referred him to the emergency room for examination.

The Claimant filed a Grievance on or about September 4, 1997, which was denied on or about September 25, 1997. [Claimant's Exhibit "1"] The Decision of the Superintendent indicates that the matter was investigated by Sergeant Murray, who interviewed the Claimant herein, Correction Officer Hereford and Correction Officer Eaves.

According to the Sergeant's investigation, Correction Officer Hereford had directed all the inmates to stand behind the gate before she shut the gate. She stated that she had neither witnessed claimant being hit by the gate, and had no knowledge of any injury. Correction Officer Eaves advised the reviewing officer that the Claimant had told him of the alleged incident about 20 minutes after he had been secured in his cell. Sergeant Murray reported: "it is my belief that the injury was self inflicted or the result of an unintentional accident. Either way, the injury was minor, and treatment was given in a timely fashion." [
Ibid., Memorandum from B. Murray to Captain McElroy dated September 11, 1997]. Finding that nothing other than the claimant's own statement supported his version of events, the grievance was denied.
Correction Officer Vanetta Hereford also testified. She indicated she had no recollection of the alleged incident or indeed of the claimant.

The legible portions of the "Report of Inmate Injury" dated September 1, 1997 [
Ibid. ] indicates that the claimant received some treatment on that date for an abrasion above his elbow, and a cold compress was applied to the area affected. There was no evidence of any other medical treatment of this claimant related to this alleged incident.
"[C]ivil assault ‘is an intentional placing of another person in fear of imminent harmful or offensive contact'; civil battery ‘is an intentional wrongful physical contact with another person without consent'....(
citation omitted)." Charkhy v. Altman, 252 A.D.2d 413 (1st. Dept. 1998). With varying degrees of mens rea, criminal assault requires physical contact as well as injury of some kind. See, § 120.00 et. seq., New York State Penal Law (McKinney's 2001). Even a criminal assault defined as "reckless," requires that the actor be "aware of and consciously disregard a substantial and unjustifiable risk that..." injury will result from her conduct. §15.05(3) New York State Penal Law (McKinney's 2001).
In this case, the claimant has failed to prove by a preponderance of the credible evidence that any incident occurred as he described it. Correction Officer Hereford credibly testified that she neither recalled the claimant generally, nor recalled any incident involving a gate closing on an inmate. What little proof of injury there was, as contained in the "Report of Inmate Injury" referred to above, does not support the claimant's allegations without some further explanatory medical testimony, which was not provided.

Claimant's testimony was somewhat unclear, and unsupported by any other evidence. Indeed, he apparently did not even report the alleged incident until almost an hour had elapsed, belying his claims of injury.

Even if the gate operated by Correction Officer Hereford struck the claimant as he alleges, there has been no showing of any conduct on the part of the state's employee which would warrant recovery against the state. Claim number 97185 is dismissed in its entirety. Any motions made at trial, upon which the Court reserved decision, are now hereby denied. The Chief Clerk is directed to enter judgment accordingly.

August 20, 2001
White Plains , New York

Judge of the Court of Claims