Claimant, Randolph Fagbewest, brings this claim alleging he was injured due to
the negligence of the State of New York (hereinafter "State"), while he was an
inmate in the custody of the Department of Correctional Services (hereinafter
"DOCS"). The trial of this claim was held on August 23, 2004, at the Elmira
Correctional Facility. At their request, the parties were given additional time
to submit post-trial memoranda, the last of which was received by the court on
September 23, 2004.
The undisputed facts indicate that on February 21, 2001, claimant was being
transported from Southport Correctional Facility (hereinafter "Southport") to
Walsh Medical Center for a medical consultation. At that time he was in the
custody of then Correction Officer Sowa and Correction Officer Pedalty and
accompanied by other inmates including Michael
After being treated at Walsh Medical Center and while mechanically restrained,
including waist chain, handcuffs and leg irons, claimant was directed to enter a
DOCS van for the return ride to Southport. The van in question did not have a
running board or steps, but rather entry was gained by stepping onto a wooden
stool placed at the side of the van by the correction officers. Claimant was
directed to enter the van by stepping on the stool which was unsteady and was
not attached to the van or held by any of the correction officers. When the
claimant attempted to step on the stool and into the van, the stool fell out
from under him and claimant fell to the ground.
At trial, now retired correction officers Sowa and Pedalty testified that there
was another van that could have been used for transport that actually possessed
running boards and a step. Based upon the foregoing, the court finds that the
State was negligent in requiring claimant to attempt to enter the van while
mechanically restrained in the manner stated on an unsteady stool without being
braced or assisted by the correction officers.
Consequently, the court will now turn to the issue of damages. As a result of
the fall, claimant testified that he sustained a pinpoint laceration on the
lower right edge of the eyebrow which resulted in minimal bleeding, swelling,
and pain, which claimant alleges is constant. Additionally, claimant alleges
that he continues to suffer from blurred vision. Claimant also broke his
glasses, but concedes the same were replaced. Claimant further alleges that
there is a scar just under his right eyebrow.
With respect to the scar, the court viewed the scar at trial and found it to be
minimal. With regard to claimant's allegations of blurred vision and constant
pain, both appear to be subjective complaints that were not borne out by any
medical testimony or subjective proof. In fact, claimant had an outside
consultation with an ophthalmologist on March 29, 2001, approximately five weeks
after the mishap, and aside from myopia, which he had suffered from previously,
it was an otherwise normal exam. (State's Ex. A).
In sum, the court finds the damages here to be minimal, namely a superficial
cut with minimum swelling and pain, all of which have subsided, with no proof of
permanency. Moreover, based upon the ophthalmology exam thirty days later, the
court finds no permanence in terms of injury to the eye or loss of vision.
Furthermore, the scarring is minimal. Based upon the foregoing, the court finds
that an award of $380 is sufficient to compensate claimant for his past pain and
Finally, the State's post-trial submission also raises the issue of statutory
witness fees and mileage relative to the witnesses requested by claimant. By
way of background, claimant submitted a Notice of Motion dated August 9, 2004
requesting various subpoenas for the trial scheduled for August 23, 2004. In
view of the imminent trial date, the court advised claimant in a letter dated
August 13, 2004, that three of the requested subpoenas would be granted subject
to payment of the statutory witness fee of $15.00 per witness and .23¢ per
mile pursuant to CPLR 8001 [a] to be paid prior to
(Court's letter dated August 13, 2004). Again, due to the imminent trial date,
the State accepted service of the subpoenas for the two former correction
officers and the court issued a body order for the inmate witness. The three
witnesses all appeared and testified at trial pursuant to said subpoenas/body
order. At trial, the State advised the court that none of the statutory witness
fees or mileage had been paid. As such, the State asks for an order directing
the deduction of the statutory witness fees and mileage from any award to
claimant. The court finds that there is no basis to waive these fees as
requested by claimant and, as such, claimant is responsible for the payment of
the statutory witness fee and mileage relative to witnesses Sowa, Pedalty, and
inmate Michael Scott.
During testimony, the State elicited from Mr. Pedalty that he traveled 20 miles
round-trip for trial. Consequently, Mr. Pedalty is entitled to the $15 witness
fee plus $4.60 for mileage (20 miles x $.23) for a total amount of $19.60. Mr.
Sowa testified that he traveled 24 miles round-trip for trial. As such, Mr.
Sowa is entitled to the $15 witness fee plus $5.52 for mileage (24 miles x $.23)
for a total of $20.52. Finally, the State represents that inmate Scott was
transported 100 miles round-trip for trial and, as such, the Department of
Correctional Services on inmate Scott's behalf is entitled to $15 plus $23 (100
miles x $.23) for a total of $38.00. The State has indicated that it would
accept these payments for forwarding onto the necessary parties.
For purposes of summary, claimant is awarded the sum of $380; however, claimant
directed to pay the statutory witness fees and mileage for the witnesses he
requested as follows: $19.60 payable to Scott Pedalty; $20.52 payable to Andrew
Sowa; and $38.00 payable to the "NYS Department of Correctional Services". The
court directs claimant submit the aforesaid checks directly to the Office of the
Attorney General, Attn. Carol. A. Cocchiola, 44 Hawley Street, 17th floor,
Binghamton, NY 13901, for forwarding onto the appropriate
Finally, to the extent that claimant has paid a filing fee, it may be recovered
pursuant to Court of Claims Act §11-a (2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
Claimant's second motion, Motion No. M-68976,
requested that the statutory witness fee and mileage be waived due to his lack
of funds. Claimant requested and was denied poor person status four times by
this court. (Fagbewest v State of New York
, Ct Cl, October 10, 2002,
Lebous, J., Claim No. 104241, Motion Nos. M-65639 & M-65840 [UID No.
2002-019-571]; Fagbewest v State of New York
, Ct Cl, December 19, 2002,
Lebous, J., Claim No. 104241, Motion No. M-66065; Fagbewest v State of New
, Ct Cl, February 23, 2003, Lebous, J., Claim No. 104241, Motion No.
M-66327 [UID No. 2003-019-517]). Nevertheless, even in cases in which poor
person status has been granted, which is not the case here, a waiver of such
fees is not authorized in CPLR 1102. (Christian v State of New York
Cl, Benza, J., Claim No. 93478, Motion No. M-57797). As such, claimant's Motion
No. M-68976 is denied.