New York State Court of Claims

New York State Court of Claims

BEASLEY v. THE STATE OF NEW YORK, #2002-016-054, Claim No. 102424, Motion No. M-64929


Synopsis



Case Information

UID:
2002-016-054
Claimant(s):
MELVIN BEASLEY
Claimant short name:
BEASLEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102424
Motion number(s):
M-64929
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Irom, Wittels, Freund, Berne and Serra, P.C.By: Richard W. Berne, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Gail P. Pierce-Siponen, Esq., AAG
Third-party defendant's attorney:

Signature date:
June 10, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 second incident[1], 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 violations.

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 training.[2] For the foregoing reasons, having reviewed the parties' submissions,[3] IT IS ORDERED that motion no. M-64929 be granted and claim no. 102424 be dismissed.




June 10, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]Claimant's papers place the second incident at New Year's Eve of 1994 or 1995 while Centeno seemed to recall it occurring on New Year's Eve of 1993.
  2. [2]It is thus unnecessary to reach the issue of whether the force used was appropriate.
  3. [3]The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A-O; defendant's memorandum of law in support; claimant's affidavit in opposition with memorandum of law and exhibits A-B; and defendant's reply affirmation.