This is defendant's motion for summary judgment dismissing the claim of Melvin
Beasley. The claim arises from an October 23, 1997 incident on an elevated
footbridge above Bruckner Boulevard near Stratford Avenue in the Bronx. Mr.
Beasley was shot by Antonio Centeno, an off-duty New York State correction
officer. According to Beasley, he and a friend, Jason Graham, "kind of
harassed" Centeno as he was walking, after which Graham began to have an
altercation with Centeno. See ¶6 of April 8, 2002 affidavit of Richard W.
Berne, Esq. Beasley contends that he was shot by Centeno as he and Graham were
running away. According to Centeno, Beasley and Graham attempted to rob him and
proceeded to punch, choke and knock him to the ground. Centeno maintains that
fearing for his life, he pulled his off-duty revolver and fired in self-defense.
Following the incident, Beasley and Graham were arrested and indicted on the
charge of Attempted Robbery. Beasley pled guilty to Attempted Assault.
Pursuant to a Decision and Order of the Hon. Ferris D. Lebous filed April 12,
2000, Beasley was granted permission to file a late claim against the State only
for negligent hiring, supervision and training of Centeno. Claimant filed a
note of issue on February 4, 2002 and defendant now moves for summary judgment
dismissing the claim. * * *
As to hiring and retention or supervision, "[a]n employer in New York State may
be held liable for negligent hiring by exposing foreseeable victims to employees
whom the employer knew or should have known had violent propensities . . .
Similarly, an employer may be held liable for negligent retention or supervision
if it acquired actual or constructive knowledge of its employee's propensity for
the conduct which caused the injury." Jablonski v State of New York, Ct
Cl dated 4/10/01, Sise, J. (unreported, claim no. 96587) (citations omitted).
Liability may also be premised on negligent training. In such case, claimant
must "establish the requisite causal connection between his injuries and . . .
[the] inadequate training, he must make some showing that specific deficiencies
in the training . . . led the misbehaving officer to engage in the alleged
misconduct." Vippolis v Village of Haverstraw, 768 F 2d 40, 44-45 (2d
Cir 1985), cert denied 480 US 916 (1987).
In his opposition papers, claimant argues as to: (1) negligent supervision or
retention; and (2) negligent training, i.e.,
there is no assertion of
negligent hiring (although this was alleged in the claim). Specifically, with
regard to negligent supervision or retention, claimant argues that two previous
off-duty incidents placed or should have placed the State on notice that Centeno
had a propensity to commit injury. In the first incident, on July 30, 1991,
Centeno was mugged on his way to work. He was struck from behind and his
Department of Correctional Services shield and I.D. card were stolen. In the
, Centeno was attacked by five
young men while on his way to work. He pulled out his weapon, but did not fire
it. Centeno testified that at the time he pulled the weapon, several of the
youths had already fled after a van appeared, but two or three were still there
and began running when he drew his weapon.
Claimant argues that these two incidents should have revealed to the State that
Centeno was "unstable" and potentially a "ticking time bomb" who had received
no counseling or psychiatric evaluation in connection with the incidents.
Claimant has provided no evidence as to Centeno's psychiatric condition, aside
from mere speculation. "[O]ne opposing a motion for summary judgment must
produce evidentiary proof in admissible form sufficient to require a trial of
material questions of fact . . . mere conclusions, expressions of hope or
unsubstantiated allegations or assertions are insufficient . . ." Zuckerman
v City of New York, 49 NY2d 557, 562, 427 NYS2d 595, 598 (1980).
Moreover, the issue here is whether these two incidents placed or should have
placed the State on notice that Centeno had a propensity for the conduct that
caused Beasley's injury. As to the first incident, in which he was mugged and
his credentials stolen, there is no evidence, or even allegation, that Centeno
used any force whatsoever, let alone a firearm. As to the second incident, in
which Centeno displayed his weapon, claimant argues that there was no
investigation or sanction against Centeno. However, claimant has produced no
evidence to suggest that Centeno acted improperly either during or after the
incident, when he reported it to his employer. In addition, prior to the
incident involving Beasley, Centeno had never fired either his on-duty or
off-duty weapon, except during training or at the firing range. Nor had Centeno
been involved in any other incidents involving alleged excessive force or rules
As to negligent training, it is undisputed that Centeno's training included
rules and regulations involving the ownership and use of firearms as well as the
firing thereof. That training included the instruction that a lethal weapon
could be used only if he was in fear of the life or safety of himself or
another. Centeno took yearly retraining courses and had to be recertified
yearly as to his on-duty weapon. Claimant alleges that Centeno was not trained
in responding to an attack by an unarmed assailant. But as defendant points
out, a section of the DOCS training manual, which Centeno did receive, was
related to unarmed defensive tactics. In short, there has been no showing of a
specific deficiency in training that led Centeno to shoot Beasley. See
Vippolis v Village of Haverstraw, supra.
In sum, Beasley has submitted insufficient proof to raise any material issues
of fact with regard to negligent hiring, supervision or retention, or
For the foregoing reasons, having
reviewed the parties' submissions,
ORDERED that motion no. M-64929 be granted and claim no. 102424 be