New York State Court of Claims

New York State Court of Claims

SWINTON/DELASPADA v. THE STATE OF NEW YORK, #2005-010-055, Claim No. 106266


Testimony of inmate claimants regarding bus accident not credible. Claimants failed to establish a prima facie case of negligence.

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:
By: Panken, Besterman, Winer, Becker & Sherman, LLPKenneth Becker, Esq., Of Counsel
Defendant's attorney:
Attorney General for the State of New YorkBy: Vincent Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 1, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


These claims arise out of an incident that occurred on May 7, 2002 when the inmate claimants were passengers on a New York State Department of Correctional Services (DOCS) bus driven by Correction Officer Lewis from Downstate Correctional Facility to Sing Sing Correctional Facility (Sing Sing). Lewis had a learner's permit for a commercial driver's license required for driving the vehicle and was accompanied by Correction Officer Louis D'Afflitto, who had a full license.[1] Claimants were among the 18 passengers on the bus. It is undisputed that, after arriving at Sing Sing, Lewis backed into a parked car.

The vehicle was described as a 20 passenger bus, with a driver's seat and two jump seats in front of a wire and plexiglass shield. Behind the barrier, inmates sat in five rows on either side of an aisle. In the rear section, there were small rectangular windows (three to four inches wide by 15 inches long) near the top of the sides of the bus. There were no windows in the back. There was a rearview mirror which permitted the driver to watch the inmates and a 12 inch rectangular rearview mirror. There was also a convex mirror on each side of the bus to view the surrounding conditions.

The former trial testimony of Correction Officer Richard Lewis from the trial of another passenger's claim (DeCayette v State of New York, Ct Cl, May 13, 2005, Scuccimarra, J., Claim No. 107869) was read into the record of this trial. Lewis testified that he checked his mirrors and looked around before putting the bus in reverse. He was trying to be very careful because there were a lot of cars in the area. He kept his foot on the brake as he proceeded and noticed that the bus moved backward slightly on its own due to a slight downgrade. Lewis maintained that he proceeded very slowly because he was a new driver. Lewis focused on a vehicle moving toward the bus' passenger side and, when he looked in another mirror, he noticed that he had backed into a parked car. Lewis thought that he had stopped completely because his foot was on the brake the entire time that he was in reverse. Lewis did not hear any noise when the bus struck the car and none of the inmates were thrown from their seats. When Lewis realized what had happened, he exclaimed that he hit a parked car. After the exclamation, some of the inmates stood up to look out the small windows at the top of the bus.

D'Afflitto, now retired after 35 years as a correction officer, testified that on May 7, 2002, he was the officer-in-charge of the trip to Sing Sing. He was responsible for the paperwork and security of the inmates. When they arrived at Sing Sing, Lewis stopped the bus outside the facility gate and D'Afflitto exited the bus to bring records into the prison. Thereafter, D'Afflitto returned to his seat on the bus, and began reading and writing. Lewis proceeded in reverse to park the bus in the garage. While ordinarily D'Afflitto would exit the bus to assist the driver in backing up, on this occasion D'Afflitto remained inside the bus because Lewis had only a learner's permit. D'Afflitto continued writing without difficulty as Lewis proceeded slowly in reverse. D'Afflitto had not realized that Lewis had struck another vehicle nor did D'Afflitto feel any impact. Lewis then exclaimed, "Oh s**t, I hit a parked car."[2]

D'Afflitto looked at the inmates, who had started laughing and joking about having sustained injuries. No one had been thrown by the impact. D'Afflitto exited the vehicle and observed that the right rear of the bus had hit the left front of a Honda. D'Afflitto reported the accident and Correction Officer N. Morris responded to the scene.

Correction Officer Morris testified that he has been employed by DOCS for 37 years and has been the Fire and Safety Officer at Sing Sing for 22 years. In this position, he is responsible for everything related to safety. He responded to the incident and observed that the bus had scraped the fender of a small car and noted a little black paint on the bumper of the bus. Morris took photographs of both vehicles (Exs. B-E). Morris, who is 5 feet 11 inches, testified that, if he were standing inside the bus, he could barely see through the windows due to their height.

Claimant, Bruce Bernard, testified that he was seated in the fourth row of the bus and could see outside through the windows along the side of the bus. He also noted that there were windows in the back of the bus. His description of the vehicle contradicted the testimony of D'Afflitto, Morris and Lewis, who maintained that there were no rear windows and that it was not possible to see through the side windows from a seated position.

According to Bernard, the bus was traveling at a speed of 20 to 25 mph and the impact was heavy, causing him to fall off his seat. When shown photographs of the accident scene (Exs. C, D, E), Bernard testified that it looked like the car that the bus had impacted, but with different damage.

Defendant moved to dismiss the claim of Tyrone Swinton and Ronald Delaspada on the ground that there was no evidence which placed them in the bus at the time of the accident. Claimants opposed the motion and argued that there was no obligation for them to be called to testify because exhibit F listed them as passengers on the bus. Even assuming that they were passengers, the Court finds that there was a failure of proof to establish all the elements of their claim, including that they sustained an injury as a result of any negligence attributable to defendant. Similarly, with regard to the claim of Bernard, there was also a failure of proof. Merely because there was an accident involving the State does not establish that the State was negligent or that it should be held liable for any resulting injuries.

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 Lewis proceeded with due care at a very slow speed, but nonetheless, an accident occurred. D'Afflitto's account of the accident was most convincing to the Court. Particularly significant in assessing Bernard's credibility was that his description of the bus was contradicted by the testimony of D'Afflitto, Morris and Lewis. Also, when shown photographs of the accident scene, Bernard maintained that it looked like the car that the bus had hit but with different damage. In sum, the Court finds that claimants failed to establish a prima facie case of negligence.

Accordingly, defendant's motions to dismiss Claim Nos. 106266 and 106353, upon which decisions were reserved, are now GRANTED.


December 1, 2005
White Plains, New York

Judge of the Court of Claims

[1] Pursuant to Vehicle and Traffic Law §501(5), an individual holding a commercial driver's learner's permit is permitted to drive a motor vehicle provided he is accompanied by a person who has a commercial driver's license.
[2] All quotations are to the trial notes or audiotapes unless otherwise indicated