New York State Court of Claims

New York State Court of Claims

RUSCH v. THE STATE OF NEW YORK, #2004-030-032, Claim No. 104818


Synopsis



Case Information

UID:
2004-030-032
Claimant(s):
M. RUSCH The caption has been amended to reflect the only proper defendant.
Claimant short name:
RUSCH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104818
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
M. RUSCH, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
September 27, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Mark Rusch, the Claimant herein, appears to allege in Claim Number 104818 that Defendant's agents failed to protect him from assault by fellow inmates, and allowed dangerous conditions to exist - such as bed bugs and asbestos dust - causing his terminal cancer, while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at Green Haven Correctional Facility (hereafter Green Haven). Trial of the matter was held at Sing Sing Correctional Facility on August 27, 2004.

Claimant testified about his lack of guilt for his underlying criminal conviction and other matters not within the jurisdiction of this Court. He spoke at length about his fear that the underlying criminal conviction was part of a larger conspiracy to cause him harm by an individual named "Tolland" who he claims gave his daughter drugs, and sexually assaulted her and/or drove a truck over her, and who then proceeded to harm Claimant once Tolland became part of the "system,"[1]
too. He testified that at first at Fishkill Correctional Facility Claimant would wake up sneezing, without energy, throwing up, "hemorrhaging" because Tolland was "getting asbestos from the basement" and hurting Claimant. Later, Claimant said, at Green Haven, Tolland arranged for others to harm Claimant because Tolland feared Claimant would testify against him. Claimant said he would "be walking through the hallway at Green Haven, or laying down, and would have dust thrown on . . . [him], and would suddenly start sneezing or choking," because Tolland's friends "were throwing dust at . . . [him]." This "damaged. . . . [his] lungs."
When he was at Elmira Correctional Facility - prior to coming to Green Haven - he was "diagnosed with cancer of the glands." He told medical personnel when asked that it was caused by Tolland throwing asbestos on him, because Claimant was a "healthy normal person" before he was incarcerated.

Claimant also said when he was at Green Haven he was "tossed against the wall" by two correction officers, they "smacked my head into the wall when I came out for medication."

When he summarized his testimony, he said that he was not guilty of any crime against his daughter, that she perjured herself to protect Tolland who had threatened her, and Tolland continued to threaten Claimant's family, and to harm Claimant because Tolland feared Claimant's testimony.

No other witnesses testified and no real evidence was submitted.

Based upon the evidence submitted, the Claimant has not stated a cause of action against the State of New York. While he is clearly upset by his illness, and disturbed by the fact of his incarceration, he has not shown how the State of New York is liable to him in any fashion.

Accordingly, Claim number 104818 is hereby dismissed in its entirety.

Let Judgment be entered accordingly.


September 27, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] All quotations are to trial notes or audiotapes unless otherwise indicated.