New York State Court of Claims

New York State Court of Claims

McKEE v. THE STATE OF NEW YORK, #2004-030-035, Claim No. 105614


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:
Third-party defendant's attorney:

Signature date:
October 12, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Larry McKee, the Claimant herein, alleges in Claim Number 105614 that Defendant's agents used excessive force and assaulted him on November 14, 2001, while he was an inmate at Green Haven Correctional Facility (hereafter Green Haven). Trial of the matter was held at Sing Sing Correctional Facility on September 10, 2004.

As an initial matter, the Defendant made a motion to dismiss the claim based upon its affirmative defense asserting a lack of subject matter and personal jurisdiction because of Claimant's alleged failure to comply with the service requirements of Court of Claims Act §11. Although Claimant's affidavit of service indicates that the Claim was served certified mail, return receipt requested, he did not provide proof that the Claim was served by that mechanism. The Claim was served on the Attorney General by regular mail as shown by the mailing envelope attached to the copy of the Claim stamped "received" by the Attorney General on February 15, 2002. [Exhibit A]. The envelope contains four $.34 stamps - postage insufficient for certified mail - and does not contain the remains of the green postcard normally associated with certified mail. Additionally, the Claim was served after the ninety (90) day statute of limitations expired on February 14, 2002.

The filing and service requirements contained in Court of Claims Act §§10 and 11
are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989); See also Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). Indeed, the statute provides in pertinent part ". . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . ." Court of Claims Act §10.
Court of Claims Act §11(a) provides that ". . . a copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general . . ." within the time prescribed in Court of Claims Act §10; and service is complete when it is received in the Attorney General's Office. Court of Claims Act §11(a)(i). Service upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §11(c)
; Edens v State of New York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998).
The Claimant has the burden of establishing proper service [
Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).
Here, the Claimant did not establish that he served the Claim upon the Attorney General as required, and the Defendant has raised the jurisdictional issue in a timely motion premised upon duly raised affirmative defenses. Thus Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was timely served with a copy of the claim as required by Court of Claims Act §§10 and 11. For procedural reasons alone, the claim must be dismissed.

More substantively, Claimant testified that on November 14, 2001 he was "on the mess hall line . . . at G-Block for feed-up"[1]
when an officer told him to "move up" and close up the line. As he moved up, Correction Officer T. Miller "shoulder bumped" Claimant. Claimant stated that the officer "didn't pick me out specifically" but nonetheless "bumped" him. When Claimant asked "what happened?" the officer responded "I'll see you later."
After breakfast, Claimant said he was on his way to school at H-Block, when Officer T. Miller - who was not the G-Block officer - called him back to the block. The officer directed Claimant to place his hands in his pockets, and proceeded to push Claimant as he walked down the corridor. When Claimant arrived at G-Block, Officer T. Miller was joined by another officer named Miller, Officer Frederick, Officer Speed and another unknown officer, who told Claimant to put his hands on the wall and take his sneakers off. As he removed his sneakers, "the officer commenced to hit . . . [him]." He said that all the officers proceeded to kick and hit him while

". . . [he] was on the floor" - they used sticks "and everything . . . and put . . . [him] in a bear hug where they twisted . . . [his] right arm." While his arm was being twisted, they "all fell down together and something popped in . . . [his] right arm."
They handcuffed him on the floor, while Claimant continued to tell the officers that there was something wrong with his arm. He was taken to the "SHU" [Special Housing Unit], where he was directed to place his hands on the wall to be searched. He told officers there's "something wrong with my right hand, so they pulled at it." Eventually, they let him go and took him to an outside hospital where his arm was put back in place. He stated he required six (6) months of therapy.

To this day, Claimant said, he suffers from pain and headaches.

An x-ray report form from the facility indicates that on November 14, 2001 Claimant was given an x-ray of his right shoulder, and the physician noted that there was "anterior dislocation right shoulder." [Exhibit 1]. Claimant also offered two exhibits concerning a grievance he apparently filed concerning disciplinary proceedings instituted against him that may have involved the subject of this Claim, but it was not made clear in the testimony exactly how the disciplinary proceeding related to the alleged assault. [Exhibits 4 and 5]. Notably, although the Superintendent's decision "modified" the hearing officer's determination in terms of the sentence, the finding of guilty was not expunged. [See Exhibit 4]. Claimant also appealed to the State Commissioner. [Exhibit 5].

On cross-examination, Claimant recalled that the underlying charges of the disciplinary proceeding concerned Claimant's alleged assault of the officer. After being found guilty of the charge - at a hearing during which he alleged he was not allowed to call witnesses - Claimant appealed, and the determinations were upheld. Claimant repeated that he was struck with sticks on the back while he was on the floor and he was kicked. Officers punched him in the head as well, he recalled, but he was primarily thinking about his arm at the time. He could not say why the group of officers attacked him.

No other witnesses testified and no other evidence was submitted.

Use of physical force against an inmate is governed by statute, regulation, and the attendant case law. The statute provides in pertinent part ". . . [w]hen any inmate . . . shall offer violence to any person, . . . or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline,[and] to secure the persons of the offenders . . . " Correction Law § 137(5)
(McKinney's 2001). As set forth at 7 NYCRR § 251-1.2 (a), an officer must use ". . . [t]he greatest caution and conservative judgment . . . in determining . . . whether physical force is necessary; and . . . the degree of such force that is necessary." Once an officer determines that physical force must be used, ". . . only such degree of force as is reasonably required shall be used." 7 NYCRR § 251-1.2(b). The state may be liable for the use of excessive force by its employee under the concept of respondeat superior. See Jones v State of New York, 33 NY2d 275, 279 (1973) and Court of Claims Act §8.
To assess whether force was necessary, or whether the particular degree of force used was reasonable, ". . . a Court must examine the particular factual background and the circumstances confronting the officers or guards (
see e.g. Lewis v State of New York, 223 AD2d 800; Quillen v State of New York, 191 AD2d 31; Brown v State of New York, 24 Misc 2d 358). Often the credibility of witnesses will be a critical factor in these determinations (Davis v State of New York, 203 AD2d 234; . . . citation omitted)." Kosinski v State of New York, Claim No 97581 (November 30, 2000, Sise, J.).
Before turning to any question of the degree of force, however, resolution of this claim rests upon the credibility of the Claimant. Based upon a preponderance of the credible evidence, the Claimant has failed to establish that he was assaulted by anybody. Resolving issues of credibility is the province of this Court as the trier of fact.
LeGrand v State of New York, 195 AD2d 784 (3d Dept 1993), lv denied, 82 NY2d 663 (1993). The only independent evidence of injury is the x-ray report indicating that Claimant had a dislocated shoulder on November 14, 2001. [Exhibit 1]. No narrative or other information indicates how the shoulder may have been dislocated. No use of force report, [See 7 NYCRR § 251-1.3] or report of inmate injury, or other independent corroboration of the event was presented in evidence. Without more, Claimant's testimony alone does not persuade the Court that the Defendant should be liable for the alleged acts of its employees.
Accordingly, the Claimant has failed to establish by a preponderance of the credible evidence that correction officers used excessive force in carrying out their duties, and Claim Number 105614 is hereby dismissed in its entirety on both jurisdictional and substantive grounds.

Let Judgment be entered accordingly.

October 12, 2004
White Plains, New York

Judge of the Court of Claims

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