New York State Court of Claims

New York State Court of Claims

SENOR v. THE STATE OF NEW YORK, #2005-015-528, Claim No. 108724


Inmate in masonry program at Great Meadow alleged back injury caused by forced use of jackhammer dismissed after trial due to absence of proof of medically determined injury. Court, however, awarded claimant $890.00 for unlawful confinement after he was written up for not attending program that he could not attend due to injury.

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:
Chanel Senor, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 1, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this claim took place at Great Meadow Correctional Facility on October 4, 2005.
The claimant was sworn as a witness and testified that on October 16, 2003 he reported to his assigned program in the masonry shop at Great Meadow Correctional Facility. He alleged that he and three other inmates were instructed on the use of a jackhammer to be used in breaking up pavement within the facility. Later, while operating the jackhammer, the claimant felt pain in his back and thereafter refused to continue using the jackhammer. As a result, the program director, Mr. Johnson, filed a misbehavior report against him. Claimant was thereafter confined to his cell in keeplock from October 16 to October 30, 2003.
On October 29, 2003 Mr. Johnson wrote another misbehavior report based upon claimant's alleged failure to appear for the masonry program. As a result of this misbehavior report claimant was deprived of yard recreation and package privileges.
Despite alleged requests to see a doctor during his keeplock confinement claimant did not see a doctor for his purported back injury until two weeks following his release from keeplock. Subsequently, Dr. Silverberg ordered two MRIs of claimant's back, the second of which purportedly showed a slipped disk. Dr. Silverberg directed that claimant be removed from the masonry program.
On cross-examination claimant acknowledged that he had a preexisting low back condition as a result of an altercation at another facility. In response to questioning by the Court claimant admitted that in this claim he seeks recovery for both his alleged physical injury sustained on October 16, 2003 and for the time spent in keeplock and his loss of privileges.
Defendant's direct case consisted of the testimony of Michael Tasick, a vocational instructor at Great Meadow Correctional Facility, who testified that on October 16, 2003 the masonry program inmates were assigned to remove a concrete walkway with a jackhammer. He alleged that claimant was directed to take his turn using the jackhammer after receiving instruction in its use by Mr. Johnson. According to this witness, claimant refused two separate orders to use the jackhammer but did not attempt to explain his refusal.
The witness was cross-examined regarding whether he was present at the scene of this incident.
At the conclusion of the testimony the Court dismissed the portion of the claim seeking recovery for physical injuries on the ground that claimant failed to supply any medical testimony tending to support claimant's contention that he in fact incurred an injury to his back on October 16, 2003 or an aggravation of a pre-existing back injury. The Court reserved decision regarding claimant's request for damages flowing from his keeplock confinement from October 16, 2003 to October 30, 2003 and his loss of yard recreation and package privileges. The record supports claimant's contention that his confinement was unlawful. The Court therefore awards claimant the sum of $50.00 per day for each of the 15 days of keeplock and the sum of $10.00 per day for the loss of yard recreation and package privileges for a period of 14 days. The total award is therefore $890.00.
The Clerk of the Court shall enter judgment in the amount of $890.00. Claimant shall also recover as a disbursement any filing fee paid pursuant to Court of Claims Act § 11-a (2).

December 1, 2005
Saratoga Springs, New York

Judge of the Court of Claims