New York State Court of Claims

New York State Court of Claims

VARELA v. THE STATE OF NEW YORK, #2002-011-108, Claim No. 99292


Synopsis


Claimant's 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:
2002-011-108
Claimant(s):
ALBERTO VARELA, 88 A 0090
Claimant short name:
VARELA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99292
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Alberto Varela, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 24, 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 July 30, 1998 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 July 30, 1998 while on his way to the mess hall claimant passed through a metal detector. Though he did not trigger the alarm, he was placed on the wall by correction officers to be pat frisked. Claimant testified that while he had his hands on the wall and his legs spread he was hit in the back by a correction officer. As he fell to the floor he was hit in the head by the knee of another correction officer, his head hit the wall and his glasses fell off. According to claimant he was pinned to the floor and one of the officers grabbed claimant's little finger on the left hand and with the loop of his handcuffs tried to dislocate the finger. Claimant testified that he was attacked because he had written a grievance against one of the officers.

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 Scott Denton testified that as claimant passed through the metal detector an item was noted on his back under his clothing. As a result, claimant was placed against the wall to be pat frisked. During the frisk the officer felt an object on the small of claimant's back. At that point, according to the officer, claimant in a quick aggressive motion turned with his elbow leading. Claimant was then restrained. Officer Kori Copeland also testified that claimant came off the wall in an aggressive manner and was taken to the floor. Officer Denton testified that the item detected on claimant's back turned out to be rolled up papers.

The testimony presents conflicting versions of what occurred in the hall. 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.

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 the correction officers, claimant has failed to meet his burden. Accordingly, the claim is dismissed.
Let judgment be entered accordingly.


June 24, 2002
Saratoga Springs, New York

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