New York State Court of Claims

New York State Court of Claims

VAN DUYNE v. THE STATE OF NEW YORK, #2002-011-102, Claim No. 102642


Claim setting forth cause of action of battery based on an allegation that claimant was physically attacked by correction officers is 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):

Claimant's attorney:
Emerald Van Duyne, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 11, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The claim sets forth a cause of action for battery based on an allegation that claimant was physically attacked by correction officers on May 21, 2000 at Clinton Correctional Facility.

The elements of a claim for battery are (1) bodily contact, which is (2) harmful or offensive and (3) made with intent (
Masters v Becker, 22 AD2d 118).
On the day of the incident as claimant passed through a metal detector at the correctional facility the alarm was activated. In response to the alarm he was pat frisked which involved removing his shoes. The procedure was for the inmate to place his hands against the wall and when instructed to reach back with one hand and remove the shoe on the opposite foot. Claimant testified that when he was instructed to do this he informed the correction officer that he couldn't do it because of a medical problem. According to claimant his comment was ignored and instead he was pushed to the floor and correction officers converged on him. He was then pushed against the wall and a correction officer held each of his arms while another pushed his shoulder into claimant's back and removed claimant's shoes. Claimant testified that after the officer checked his right shoe and foot he put claimant's foot back on the floor and stomped on it.

The version of events offered by defendant also involves correction officers employing force against claimant but only for the purpose of restraining claimant.

Justification is a defense to an action for battery (2 NY PJI 26 [Supp]). Justification in using physical force exists for a correction officer when an inmate resists or disobeys any lawful direction and it is necessary to maintain order or enforce observation of discipline (Penal Law §35.10[2]; Correction Law §137[5]). To establish the defense defendant must demonstrate that the officer used objectively reasonable force (see,
Higgins v City of Oneonta, 208 AD2d 1067).
Correction Officer Craig Barriere testified that in the course of conducting a pat frisk of claimant he told claimant to remove his shoe. Claimant refused saying that it wasn't right and he took his hands off the wall and dropped to the floor. Correction officers got claimant back up and told him to put his hands on the wall. Officer Barriere testified that Correction Officer Vann then held claimant's right arm against the wall while he, Officer Barriere, put his shoulder against claimant's lower back to prevent him from again dropping to the floor. The officer then had claimant lift each foot in turn and the shoe was removed and checked for contraband.

The testimony presents conflicting versions of what occurred. In claimant's version the force used was unprovoked and constitutes a battery. In the version offered by defendant force was used only to effect the pat frisk and was reasonable under the circumstances. Liability, or the absence of it, depends on crediting one version rather than the other.

Both versions are plausible. However, the burden of proof is with claimant and in the absence of some reason for crediting his story, over that of Officer Barriere's, claimant has failed to meet his burden. Accordingly, the claim is dismissed.


June 11, 2002
Saratoga Springs, New York

Judge of the Court of Claims