New York State Court of Claims

New York State Court of Claims

FAGBEWEST v. THE STATE OF NEW YORK, #2004-019-016, Claim No. 104241


The State was found negligent in failing to provide proper means of ingress into a van for a mechanically restrained inmate; claimant established only minimal damages and awarded $375.

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:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 21, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

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.[1]

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 Scott.[2]
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 suffering.

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 trial.[3]
(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.[4]

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 is

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 parties.

Finally, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a (2).


October 21, 2004
Binghamton, New York

Judge of the Court of Claims

[1]Claimant's post-trial submission was labeled as a "Notice of Motion for Motion for Directed Verdict." The court treated said papers as the post-trial submission as agreed upon by the parties at trial and not as a separate post-trial motion.
[2]Claimant called inmate Michael Scott as a witness at trial. The court did not find inmate Scott to be a credible witness. Nevertheless, claimant and the remaining witnesses, namely the correction officers on duty at the time, corroborated this series of events.
[3]Claimant filed two motions on the eve of trial both of which were formally made returnable at trial. In Motion No. M-68954 claimant sought subpoenas for former correction officers Sowa and Pedalty, an inmate witness Michael Scott, Superintendent McGinnis, and the production of certain directives. The court granted the requests for Mr. Sowa, Mr. Pedalty, and inmate Scott, while denying claimant's remaining requests.
[4]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 York, 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, Ct Cl, Benza, J., Claim No. 93478, Motion No. M-57797). As such, claimant's Motion No. M-68976 is denied.