New York State Court of Claims

New York State Court of Claims

ELY v. THE STATE OF NEW YORK, #2005-010-034, Claim No. 107120


Inmate account of slip and fall not credible.

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):

Terry Jane Ruderman
Claimant's attorney:
DEREN, GENETT & MACREERYBy: John Brian Macreery, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries she allegedly sustained on December 26, 2001, during her incarceration at Bedford Hills Correctional Facility (Bedford). Claimant maintains that during a search of her cell she was unreasonably deprived of her authorized medical equipment, i.e., knee braces and a cane, and was forced to walk down a flight of stairs without the aid of them. Claimant further maintains that while negotiating the stairs without her medical equipment, she twisted her leg and aggravated a pre-existing left-knee injury.[1] The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant was incarcerated at Bedford from February 1983 to July 2003 and was then transferred to Albion Correctional Facility, where she is presently incarcerated. During her incarceration at Bedford, claimant served as the clerk to then Superintendent, Elaine Lord. After a 1990 injury to her right leg and foot, in 1995 claimant was issued long-term medical permits for an extra mattress, metal cane, right-knee brace, bed board, hot water bottle and heating pad (Ex. 1, pp. 334-35). In 2000, she tore her left anterior cruciate ligament and was issued a left-knee brace. Claimant testified that when she wore both knee braces, she did not have any pain and her knees were kept aligned. However, she did not wear the braces all the time. She only wore them when standing for long periods of time, descending stairs, kneeling or squatting.
Claimant testified that on December 26, 2001, at approximately 4:15 p.m., correction officers began a search of her cell. She was not permitted to be present during the search or to retrieve her medical equipment.[2] She remained in the rec area from 4:30 p.m. to 7:00 p.m. when Correction Officer Robert Arndt directed claimant to walk downstairs with him to see the sergeant on duty. Claimant protested that she could not descend the stairs without her braces and her cane. Nonetheless, according to claimant, the officer insisted that she follow Arndt down the stairs.[3] Claimant testified that her right leg buckled while descending the stairs and she twisted her left knee. She grabbed the railing to prevent a fall. They continued through a tunnel to the former weight room on the ground floor of housing unit 113. Claimant testified that the room had been locked.[4] She remained in the room until 8:44 p.m., when she was allowed to return to her cell.[5]
En route to her cell,
claimant passed Lord, Sergeant Gary Notaro and Counselor Luz Santana. Claimant testified that, in response to an inquiry from Lord as to how claimant was doing, claimant answered that she was limping. At trial, claimant was questioned as to why there was no reference to claimant's alleged reply in her EBT. Claimant responded that her memory had changed since her EBT and that her recollections had become more detailed over time. Claimant, however, never corrected her EBT to add to her purported reference to limping. Claimant did not tell Lord that claimant's leg had buckled or that she was in pain. She just kept walking back to her cell. When claimant walked through the disciplinary waiting area in the 114 lobby, she noticed correction officers examining all of her property. She went upstairs, one step at a time, and returned to her cell where she observed that all of her personal property was missing, including letters from friends and family, a journal, poetry, drawings and sheet music. An I-64 Inventory Form was not prepared for her property.[6] Between 10:00 and 10:30 p.m., Correction Officer Patricia Bufford returned claimant's knee braces, cane and medications. After 11:00 p.m., Correction Officer Kahn brought claimant her comforter and sheets.
On December 26, 2001, claimant never requested medical attention and never advised anyone that she was in pain nor did she complete an Inmate Injury Form despite her admitted awareness of an inmate's duty to report promptly any injuries. Claimant maintains that she applied ice to her swollen knee and took painkillers that had previously been prescribed to her for other ailments. On December 31, 2001, at a previously scheduled medical appointment, claimant reported an injury to her knee and her medical records indicate that her left knee was swollen. She could not recall if she had complained about her left knee to any correction officer before that appointment.
Correction Officer Robert Arndt testified that he has been a correction officer at Bedford since 1997. Prior to December 26, 2001, he was aware that
claimant had medical permits for knee braces and a cane and that she was not to perform any heavy lifting, pushing or pulling. He testified that he had observed claimant in the past and noted that she wore the braces occasionally and used her cane sporadically; she did not use either of them on a daily basis. He also never observed any problems with claimant's walking.
Arndt testified that at 4:30 p.m. on December 26, 2001, he approached
claimant in the rec room on her unit and directed her to pack her belongings. She went to her cell and, under the supervision of correction officers, started packing. While Directive 4910 prohibited inmates from handling property during a search, Arndt insisted that claimant would be allowed to do the packing because the search was conducted downstairs in the 114 lobby rather than in her cell. He maintained that the logbook entry indicating that the correction officers had packed her belongings was incorrect (Ex. 4).
According to Arndt, c
laimant asked for her cane, but not her braces. Arndt allowed her to have her cane because he knew she had a permit and it would have been a violation of a directive not to have given it to her. Had she requested her braces, he would have given them to her based on the same rationale. Claimant was compliant and not disruptive.
Arndt and the other correction officers carried
claimant's bags downstairs while she remained in her cell. At approximately 7:00 p.m., claimant requested new medication because her issued medication was packed in the bags. Arndt escorted claimant downstairs to the 113 lobby. Arndt testified that he had escorted claimant downstairs on several prior occasions and that she had her cane on each of those occasions. On this occasion, claimant preceded Arndt down the stairs and she used her cane. Arndt did not see claimant stumble or her legs buckle. She did not cry out in pain, say that she was hurt, or ask to go to medical. Claimant was taken to the weight room which was a holding area for inmates being escorted for medications.
Arndt further testified that
claimant went to the Regional Medical Unit for her medications, but Arndt did not know who escorted claimant to that location. After the search was completed, Arndt gave claimant personal items including toothpaste, a toothbrush, shampoo, soap and a washcloth. When Arndt brought claimant these items, she did not indicate that she was in any pain. He also maintained that the logbook entry indicating that claimant received her cane and braces at 10:00 p.m. was incorrect.
Captain Stephen Albury testified that he has been employed by the New York State Department of Correctional Services (DOCS) since 1979 and has been a correction captain at Bedford since April 13, 2001. He knew
claimant and saw her prior to December 26, 2001. He remembered that she wore braces and used a cane, but he did not recall the frequency of that use. Albury noted that if an inmate is permitted to have medical appliances, under normal circumstances, a correction officer should comply with an inmate's request for access to the devices. Albury further testified that it is an inmate's responsibility to report any and all injuries to authorities and that the failure to do so is a violation of Rule 118.23. He also stated that the door to the weight room was not hung properly and could not be locked.
In regard to searches, Albury explained that pursuant to Directive 4910, with the exception of inmates in the special housing unit, all inmates may be present during a search of their cells unless a supervisor perceives a danger. The logbook reveals that Sergeant Notaro ordered
claimant's cell to be searched while she remained in the rec area during the procedure (Ex. 4, p. 142). According to Albury, from the rec area, claimant's cell and the disciplinary waiting area of 114 was not visible.
Sergeant Gary Notaro testified that he has been employed by DOCS since 1984 and has been a sergeant at Bedford since 1994. Prior to December 26, 2001, he was aware that
claimant had used a cane and knee braces and he had discussions with her regarding this equipment. He recalled that claimant always used her cane, but rarely wore her knee braces.
Notaro testified that
claimant's cell was selected for a property compliance search because she was deemed to have excessive property. Claimant had been receiving a large quantity of cosmetics and superiors thought claimant might be selling the items to other inmates. Claimant's belongings were to be packed and moved to the 114 lobby since her 27 bags of property were too large to be examined in her cell. Notaro admitted that claimant should have been permitted to be present during the search unless she was disruptive and he had no knowledge of her being disruptive.
Notaro recalled seeing claimant twice on the evening of December 26, 2001. He observed her walking downstairs with Arndt and later observed her in the disciplinary area with Lord. Notaro did not notice anything unusual about claimant's demeanor or gait on these occasions.
Notaro was familiar with the former weight room. He maintained that the lock was broken his entire time at Bedford and that the room was used as a holding area when moving inmates. Notaro maintained that it was proper for
claimant's braces to be taken initially during the search, but that they should have been returned to her as soon as it was ascertained that they were authorized.
Correction Officer Patricia A. Bufford testified that she has been employed at Bedford for approximately 15 years. She recalled seeing
claimant prior to December 26, 2001 with a cane, but never with braces. Bufford further stated that claimant did not always use her cane. On December 26, 2001, Bufford brought claimant's leg braces and personal items to her sometime after the 10:00 p.m. count. When Bufford entered claimant's cell, she stood and did not limp. Bufford described claimant's demeanor as pleasant. Claimant did not report any problems or indicate that she had suffered any injury. She did not request any medical attention. Bufford explained that an inmate who incurs an injury must notify a correction officer.
Bufford completed a Misbehavior Report as to contraband recovered from the search of
claimant's property. Bufford did not know the disposition of the hearing on the misbehavior report. Bufford was not aware of any grievance filed by claimant regarding the search. When questioned on cross-examination, Bufford conceded that, pursuant to Directive 4910, it would be correct to say that correction officers conducted the search rather than an inmate.
Correction Officer Holmes was called on rebuttal. He did not remember anything but acknowledged that the entries in Ex. 4 , at 4:20 p.m., 8:00 p.m. and 10:05 p.m. were his.
The State is not an insurer of the safety of its inmates and negligence cannot be inferred solely from the occurrence of an accident (
see Killeen v State of New York, 66 NY2d 850; Condon v State of New York, 193 AD2d 874). Moreover, it is well established that:
Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury.

(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7; see also Bernstein v City of New York, 69 NY2d 1020; Marchetto v State of New York, 179 AD2d 947). Claimant failed to establish that any negligence which could be attributed to defendant was a proximate cause of her injury.
Indeed, the Court does not believe that
claimant in fact injured her knee on December 26, 2001. Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that claimant asked only for her cane and not her knee braces and that claimant's request was satisfied. The Court notes that the evidence established that claimant did not use her leg braces and her cane at all times. The Court further finds that, according to Arndt's testimony, claimant was compliant and not disruptive in proceeding down the stairs with her cane. Arndt observed claimant negotiate the stairs and he did not see her stumble or her legs buckle. According to Arndt, claimant did not cry out in pain or otherwise indicate she was hurt. Claimant was admittedly aware of the duty to promptly report any injuries. However, she did not complete an Inmate Injury Form or request any medical attention on the date of her alleged fall. Rather, her first complaint of injury was five days later when she appeared for a previously scheduled medical appointment. Claimant's testimony was less than forthright and was riddled with inconsistencies and implausible explanations for those inconsistencies. The Court finds that claimant's account as to how and when she injured her left knee strains credulity.
defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.

June 28, 2005
White Plains, New York

Judge of the Court of Claims

[1] At the end of claimant's case, defendant moved to dismiss the claim of intentional infliction of emotional distress based upon claimant being housed in a cell with an inmate suffering from AIDS. Claimant offered no medical proof to support her claim because, concededly, she never sought any psychological or psychiatric care for her purported distress. Accordingly, she failed to establish a prima facie case and defendant's motion to dismiss this cause of action was GRANTED.
[2]Claimant argued at trial that she should have been permitted to remain present while the search of her cell was conducted and that certain personal items of sentimental value, such as personal papers, greeting cards and photographs, were not returned to her after the search. Despite claimant's familiarity with grievance procedures, she never filed an Administrative Grievance or an Article 78 Proceeding regarding the search and her seized property. Claimant asks this Court to order the return of her property. The items to which claimant refers concededly have no monetary value and this Court is without equity jurisdiction to direct their return. Accordingly, the relief claimant seeks on that aspect of her claim is DENIED.
[3] At her examination before trial (EBT), claimant had testified that she preceded Arndt down the stairs. At trial, claimant was confronted with her EBT testimony. She maintained that her trial testimony is more accurate than her EBT testimony because since her EBT, she has refreshed her recollection with her diary. She further stated that she had not reviewed her diary prior to her EBT because the diary had not been written until after the EBT. Claimant also stated that she never corrected her EBT testimony, even though she later believed that her testimony had been incorrect.
[4] Correction Officer Arndt testified that the room lock had been inoperable since he began his employment at Bedford in 1997.
[5]Claimant testified that she could see her cell from her location in the weight room. This was disputed by officers Arndt and Albury. At the request of counsel, the Court visited the facility with counsel and observed that, while the cell windows were visible, it would be difficult to see any details even with lights on in the evening. This Court's observations were significant because it impacted the Court's evaluation of claimant's credibility.
[6] Captain Albury and Sergeant Notaro explained that an I-64 Inventory Form would not be generated in this case because these forms are used when an inmate is moved from one housing location or facility to another.