New York State Court of Claims

New York State Court of Claims

PHILIP v. THE STATE OF NEW YORK, #2002-011-104, Claim No. 96504


Synopsis


Claim setting forth a cause of action for battery based on an allegation that Claimant was physically attacked by correction officers is dismissed.

Case Information

UID:
2002-011-104
Claimant(s):
ANDREW PHILIP
Claimant short name:
PHILIP
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96504
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Andrew Philip, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 11, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
The claim sets forth a cause of action for battery based on an allegation that claimant was physically attacked by correction officers on April 20, 1997 at Great Meadow 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 claimant was taken from the yard to an area where he was frisked. No contraband was found. He was then handcuffed and taken to a secure area to be strip searched. During the strip search claimant was instructed to put both hands on the wall. When directed he was then to take one hand off the wall and use it to remove a piece of clothing and hand it back to the officer. Claimant testified that the officers said he made a move that caused them to restrain him. According to claimant, he was grabbed by the throat and thrown to the ground. He was then handcuffed and punched in the face.

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

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 Gary Maille testified that during the strip search claimant reached into his underwear and placed something in his mouth. He was then taken to the ground and the item retrieved. Officer Maille testifed, and report of the test on the item showed, that it was marijuana. According to Officer Maille, only the amount of force necessary to retrieve the contraband was used.

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 restrain claimant and was reasonable under the circumstances. Liability, or the absence of it, depends on crediting one version rather than the other.

Inasmuch as claimant failed to include in his testimony that contraband was taken from him during the search, the remainder of his testimony is something less than believable. The testimony of Officer Maille on the other hand is consistent with the other evidence including his explanation of how claimant received the injury to his face. Accordingly, the claim is dismissed.

Let judgment be entered accordingly.


June 11, 2002
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims