New York State Court of Claims

New York State Court of Claims

HARVEY v. STATE OF NEW YORK, #2005-018-482, Claim No. 108392


The Court finds Claimant's description of the events credible and there was no conflicting evidence.

Case Information

ANDREW HARVEY The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 22, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant alleges he was assaulted by a Correction Officer (hereinafter C.O.) at Watertown Correctional Facility on August 6, 2003. He testified that a riot broke out in the yard that day, and everyone near the incident was handcuffed and told to kneel until other officers could transport them individually to the draft area. Claimant testified that he was working out and had nothing to do with the riot. When it was Claimant's turn to be moved to the draft area, the C.O. who escorted him was yelling at him and was rough. Claimant testified that when they reached the doorway, the C.O. banged his head against the metal door frame. Claimant testified other inmates witnessed the assault.[1] He said he requested medical attention but did not receive it. The following day, his eye was bruised and photographs[2] were taken which show a slight discoloration of Claimant's left eye.

Claimant said he was angry when he arrived at the draft area and was yelling at the C.O.'s. He received a misbehavior report and 15 days in the Special Housing Unit.

Claimant alleged in his verified claim that C.O. Kogut assaulted him. Claimant testified that he tried to obtain the name of the officer who escorted him to the draft area that day. He identified C.O. Kogut as the assailant after he saw him and thought he looked like the C.O. who had taken him to the draft area.

The State called C.O. Mustizer to testify. He was in the draft area and was removing the handcuffs from the inmates. Claimant threatened him and refused a direct order which formed the basis for the misbehavior report. He said the Claimant never asked for medical assistance and he did not see any injury. C.O. Mustizer agreed that Claimant had requested the name of the officer who escorted him.

Cheryl Kavan, a keyboard specialist at Watertown Correctional Facility, testified that Exhibit B was a business record kept in the regular course of business. It was C.O. Kogut's time record which showed he was not working on August 6, 2003.

Defendant did not call any other witnesses. The Court finds Claimant's description of the events credible and there was no conflicting evidence. The photographs in evidence show some bruising over Claimant's left eye.[3]

To establish a cause of action for battery, there must be proof of bodily contact with offensive intent (Hassan v Marriott Corp., 243 AD2d 406, 407). Although physical injury need not be present for an assault, the conduct must be such that it places Claimant in imminent apprehension of harmful contact (id.).

Here, Claimant has established intentional offensive bodily contact. Claimant is entitled to $100 for his bruised eye.

It is hereby ORDERED, that to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).


August 22, 2005
Syracuse, New York

Judge of the Court of Claims

[1]Claimant sought judicial subpoenas for three witnesses but failed to properly move for such relief pursuant to CPLR 2302(b). Also, Claimant was not able to adequately identify the inmates he sought as witnesses.
[2]Claimant's Exhibit 1.
[3]Claimant's Exhibit 1.