New York State Court of Claims

New York State Court of Claims

LOWE v. THE STATE OF NEW YORK, #2002-032-506, Claim No. 104622


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:
Vernon Lowe, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Mike Rizzo, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 18, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

On September 24, 2002, this claim was heard at the Clinton Correctional Facility ("Clinton") in Dannemora, New York.

Claimant Vernon Lowe filed this claim,
pro se, on July 23, 2001. He alleges specifically that on May 29, 2001 at approximately 10 A.M., while he was sitting on a toilet in the bathroom of the tailor shop, an industrial mop bucket half filled with floor wax fell from a sectioning wall that was 5 foot high and 5.5 inches wide and struck claimant on the head and neck (claim, Statement of Facts)[1]. After the bucket struck him, he hit the toilet paper dispenser and he then fell to the floor. He claims he was rendered unconscious and received a laceration on the back of his left arm. Although the claim requests damages in the amount of $100,000.00, it was amended at trial to request $3,000.00
Claimant was first brought to the infirmary at Clinton and then transported to Champlain Valley Physician's Hospital where
a CAT scan of his head and neck x-rays were negative. He was prescribed motrin for pain, norflex for muscle spasm and advised to apply heat or ice to the neck for comfort (Exhibit 1). He was treated at the Clinton infirmary again on June 1, 2001, June15, 2001 and June 20, 2001 for complaints of various ailments including earwax, dizziness, and vomiting. He received a medical excuse for work, sports and gym on June 15, 2001 for four days and one on June 21, 2001 for three days (Exhibit 3). On June 18, 2001, he wrote to the Superintendent complaining that his restrictions were only for gym, work and sports therefore he should be allowed to go to recreation (Exhibit B).
The Correction Officer on duty the day of the accident, Joseph Fitzgerald, testified on behalf of the defendant. He started his shift at 7:30 in the morning that day at which time he did

his first rounds. Although he had previously observed the buckets resting on the partitioning walls between the toilets, that morning he did not observe any mop buckets there. He did see a couple of mop buckets on the floor, one with a mop head soaking in water and one that was empty. These buckets were next to the partitioning wall that the claimant alleges the bucket that hit him was resting upon. Fitzgerald was out doing rounds when the accident occurred.
The next witness for the defendant was Sergeant Douglass who supervised the vocational shops at that time. He conducted an investigation of the accident by interviewing inmates and staff assigned to the area.[2]
It was Sergeant Douglass' belief that this was not a true accident, that it may have been staged. He reached this conclusion because the physical evidence did not match what happened. For example, when the inmate was found his pants were up and buckled and his shirt was tucked into the pants. The back of his clothing was dry, and only the front part of his clothes were wet.
This claim rests exclusively on the credibility of claimant. There were no witnesses to the accident, and even his medical treatment revealed no objective evidence of the injury but relied exclusively on his reports of his conditions.
The credibility of a witness is determined by the trier of the facts, because it is that judge or jury who sees and hears the witnesses (Amend v Hurley, 293 NY 587, 594). "[T]he appearance, attitude and demeanor of a witness upon being questioned and while before the court are matters to be taken into consideration in testing veracity and in determining the weight to be accorded his or her testimony" (People v Carter, 37 NY2d 234, citing Matter of Nowakowski, 284 App Div 655, 657). Observation of the witness's demeanor is often the single most accurate method of determining the truth (Belle v Boyd, 252 NY 422, 429). In the instant case, the Court did not find claimant to be a credible witness, either as to the account of the accident or as to his claims of resultant injury.
The Chief Clerk is directed to enter judgment dismissing this claim.

December 18, 2002
Albany, New York

Judge of the Court of Claims

[1]Unless otherwise noted, the facts are obtained from testimony at trial.
[2]Sergeant Douglass' "To/From" memoranda to Lieutenant Dresser (Exhibit C) contained many hearsay statements, including statements from inmates who responded to the accident and a summary of what a "confidential source" told him. Claimant did not object to this document and it was admitted into evidence. The Court will not consider as part of the record any of the hearsay statements contained therein.