New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2006-013-511, Claim No. 103063


Synopsis



Case Information

UID:
2006-013-511
Claimant(s):
DELANO BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103063
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
DELANO BROWN, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 23, 2006
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The claim herein was filed on September 12, 2000 seeking damages for various incidents. In my decision and order in Motion No. M-70333, filed on August 18, 2005, I addressed a chronology of the allegations contained in the claim and the notice of intention, and I determined that there were three separate and distinct incidents that survived the State's motion to dismiss and which would be heard at trial.

There was extensive post-trial communication from Claimant,
inter alia, regarding certain Freedom of Information Law (FOIL) requests that he had made, and which included several attached documents which he wished to have me consider. To the extent that Claimant seeks to have evidentiary exhibits admitted into evidence post-trial, such request is denied, as is his letter request entitled "NOTICE OF MOTION TO REOPEN CLAIM/TRIAL BEFORE DECISION" dated October 21, 2005, but not postmarked until December 1, 2005 and not received in my chambers until December 5, 2005. Claimant was given a pretrial opportunity to make a motion seeking the production of documents and witnesses for the trial, and he did not do so. Instead he utilized FOIL requests, and regardless of the responses that he received, none of that correspondence is probative or admissible after the trial. Accordingly, I decline to consider or admit into evidence any of the post-trial submissions of documents. On the other hand, to the extent that Claimant makes legal arguments in his post-trial submissions, relative to the trial of his claim, they have been considered by me.
Finally, before addressing the merits of the claim, Claimant has raised objection to the materials provided pursuant to a subpoena which I signed at Defendant's request seeking the production of certain medical records of Claimant. Claimant objected at trial, as well as in his post-trial submissions, about the scope of such medical records, suggesting that they include much more material than is relevant to the alleged injuries he sustained, implying that his privacy rights may have been affected. The medical records that were produced (Exhibit H) are the Claimant's chronological ambulatory health records (AHR) starting with a notation on December 30, 1997 and ending with a notation on September 26, 2000, and include three radiological requests and six medical consultation requests and reports also covering the period from 1997 to 2000. It cannot be said that this chronological medical record covering the period in which Claimant raised issues dealing with his alleged injuries is not pertinent. The Defendant offered the testimony of a physician (Dr. Mary Elizabeth Clemens, Medical Director at Wende Correctional Facility), who reviewed and testified about those records, but only to the extent that they reference particular complaints and injuries connected with the three allegations under consideration. Her testimony, both on direct and on cross-examination by the Claimant, only addressed specific dates in the AHR, and my review thereof is so limited. Indeed, given my findings below, dismissing the claim herein because no liability or damages have been established, the Clerk's Office is directed to seal this exhibit unless there is an appeal herefrom, in which event the exhibit shall be returned to the party who offered it into evidence for the preparation of the appellate record. If no appeal is filed, the Clerk's Office is directed to destroy the exhibit 60 days after service of a certified copy of the judgment herein upon the parties. The Clerk's Office is directed to serve the judgment upon the parties.

Thus, I consider each of the three separate incidents which remained viable after the decision and order in Motion No. M-70333.

The first incident occurred on August 14, 1998 at Wende Correctional Facility (Wende) when Claimant was injured while attempting to climb into the top bunk in a double-bunked cell and could not hold on because he had been suffering from a pre-existing condition and because of a prior injury to his thumb on a buffing machine. Claimant had a "Medical Excuse" that stated "No top bunk." The permit, dated February 21, 1997, had an indefinite expiration date and which Claimant testified was issued at Franklin Correctional Facility (Franklin), was admitted into evidence (Claimant's Exhibit 1). He further testified that he obtained this medical excuse because of a chronic back condition that he had when he entered the Department of Correctional Services in 1981.

Claimant fell while trying to climb up, with no stepladder, and because of his medical condition, he could not hold onto the top bunk. When he fell, his state-issued metal framed eyeglasses fell off and broke. He alleges that he sustained some swelling on the side of his head, around his temple. He alleges that he went to the infirmary the next day on sick call and was given pain medication, possibly ibuprofen. He was not bleeding from these injuries. Although he claimed at trial that the pain, headaches and swelling lasted for four to six weeks, there is no mention of this incident in his AHR until September 29, 1998 at Franklin, some six weeks after the incident. At that time, the only physical complaint noted concerned his thumb. He testified that he spent some $45.00 for the purchase of those glasses, in what he said was June 1997, and they had to be repaired, for which he incurred a $10.00, or possibly $15.00, repair cost. Other than his testimony, Claimant presented no evidence, no receipts or other documentation whatsoever, confirming that he had incurred any repair costs. Claimant did offer documents relating to his eyeglasses (Exhibit 3), which included two documents: one dated November 4, 1998 entitled "Eye Record" noting the need for a new frame part, and another from November (no day) 1998 from the Corcraft-Wallkill Optic Lab seemingly enclosing a new frame part. A third page of that exhibit is a signed acknowledgment of the receipt of one pair of eyeglasses, signed by Claimant with the date December 9, 1989. However, there appears a file stamp on that document indicating it was "Received: Dec - 8 1998." Given that Claimant offered all three documents as Exhibit 3 relating to this eyeglass claim, it seems likely that Claimant transposed "98" and "89" when he dated his signature, and that document reflects Claimant's receipt of eyeglasses shortly after the new frame part was ordered.

Regardless, given that Claimant offered these documents into evidence, and given that he offered no documentation to demonstrate that he did incur any expense relating thereto (his testimonial reference to a repair cost of $10.00 or $15.00 was equivocal and uncertain), his claim for damages to his eyeglasses is denied as unsubstantiated.

With respect to damages for the alleged injury to the side of his head, the medical records in evidence are devoid of any record of complaints or medical treatment contemporaneous with the alleged fall, either on the day it allegedly occurred, August 14, 1998, or subsequent AHR notations on August 18, 1998 or August 31, 1998, respectively just 4 or 17 days later. There is no reference in his record until September 29, 1998, after his return to Franklin from a court trip, where it is reported that his glasses were broken and he had hurt the right side of his head while climbing to the top bunk. There are no contemporaneous complaints recorded on the day of the incident; no complaints were recorded in the AHR either 4 or 17 days thereafter, and his trial testimony about headaches and soreness for a period of four to six weeks after the incident was sufficiently questioned by Dr. Clemens, Medical Director at Wende, as being outside the normal duration of such injury as described by Claimant at trial. In short, Claimant appears to have exaggerated his complaints. I realize, of course, that there was a no upper bunk medical excuse, but whatever bruising that Claimant may have sustained was so minor that his complaints cannot be sustained on this record, and accordingly are not compensable.

Moreover, Defendant established that the no top bunk medical excuse was related to Claimant's purported bad back, and Claimant testified that he could not hold on because of the injury to his thumb from the buffing machine (an incident which occurred on August 4 and 9, 1998 - see my decision and order in Motion No. M-70333), and thus there was no causal relationship between his fall while attempting to climb to the upper bunk and the underlying reason for the medical excuse.

The second incident is an alleged "smoke inhalation" event at Wende occurring on September 20, 1998, when Claimant was housed in 22 Company at the top level, and there was a fire from an inmate's property in 21 Company, also housed on the top level, around the corner. He complained that he was not released from his cell while the smoke accumulated on this top level, with no other place to go; that he was refused permission to leave his cell; that his complaints were ignored, and that the smoke lasted all day. It was only later that day, upon his request, that he was able to see a correction sergeant and a nurse, who still refused to allow him to be released from his cell that evening. Claimant testified that he never received any medical treatment as a result of that incident. He testified that his eyes and nose were running and that he was coughing, causing dark phlegm. This condition lasted for a "few days" and by the time he returned to Franklin some three or four weeks later, everything had cleared up.

Correction Officer (CO) James Zemla, the fire and safety officer at Wende at that time, testified with respect to this incident, as well as general procedures to be followed in the case of fire. He described the different categories of fires, how this fire was extinguished, how staff checks out every inmate on the floor, and what the protocols are in terms of response and possible evacuation and risk to the inmates. CO Zemla reviewed the Report of Fire of this incident on September 20, 1998 (Exhibit A), which reflects that a small pile of paper burned and another correction officer extinguished the fire with a fire extinguisher. The papers were in a small can next to the lockers just in front of the inmate's cell. Photographs of the cell and location of fire, all taken shortly after the fire, were admitted into evidence (Exhibits C, D, E, F and G). I reviewed the photographs showing the cell where the fire took place and note that there was minimal damage in a very limited spot at the front of that cell, and observed the lack of damage to the contents of that cell. Frankly, given those photographs, I find that Claimant grossly exaggerated the amount of smoke that was created by this small fire, and has grossly exaggerated, if not fabricated, allegations of having sustained any injury. CO Zemla indicated that evacuations only take place where there is heavy smoke, and that every gallery has an exhaust fan. The fire was discovered at 9:55 a.m., it was extinguished using a small fire extinguisher and was under control at 9:58 a.m. Only the inmate inhabitant of the cell in question was seen by medical personnel, and no other inmate required medical observation. As CO Zemla observed, the fire was so small that the photographs reflect no smoke pattern on the lockers. Testimony established that no inmates were evacuated from their cells, either from 21 Company in which the fire started, or in Claimant's 22 Company around the corner. Dr. Clemens testified that Claimant's medical records were devoid of any complaints made or treatment received relative to the alleged smoke inhalation. Moreover, the claim asserted that the smoke was toxic, and Claimant offered no evidence of toxicity whatsoever. I find that the claims here are totally unsubstantiated, and in any event, even if Claimant had smelled or inhaled some smoke, there are no sustainable or documented injuries.

The third incident occurred on October 7, 1998 in which Claimant's right hand little finger was injured on an allegedly defective door latch to a dividing door in the day room at Wende. The latch was purportedly broken, and when he was reaching to open the door, another inmate was pushing the door open from the other side and his hand received a cut. He was sent to the infirmary, and given pain medication, perhaps ibuprofen. He claims that he was referred for physical therapy as a result of this injury, that they took x-rays and he was given a ball to exercise with to restore flexibility. Claimant testified that this physical therapy treatment continued for about one year.

Dr. Clemens testified,
inter alia, with respect to the medical records relative to this incident. The notation in the medical record describes a superficial laceration of approximately one inch in length on the back of the small finger of Claimant's right hand, and reflects that no x-rays were taken on that date. The Report of Inmate Injury (Exhibit 5) for that day noted that the wound was washed, betadine was applied and it was covered with a Band-Aid. Dr. Clemens testified that within a reasonable degree of medical certainty that the type of injury Claimant sustained would not require any physical therapy. On the next day, October 8, 1998, the AHR notes complaints of right thumb pain concerning the alleged injury with a buffing machine (occurring in August 1998), and that x-rays of his right hand relating to the thumb injury were taken at that time, with no fractures noted, with mild soft tissue swelling. Claimant's medical records reveal that there was some physical therapy, only after the complaints of October 8, 1998 relating to the thumb injury and the buffing machine, and, as Dr. Clemens testified, such therapy was related only to that injury, and not the one-inch laceration from the door latch injury of October 7, 1998.
Regardless, Claimant has totally failed to allege, let alone prove, any culpable or negligent conduct on the part of the Defendant; there is no suggestion that the Defendant was on actual or constructive notice of the supposedly defective latch, or that it failed to make timely repairs after it was put on notice.

In sum, none of the allegations relating to this minor one-inch laceration justify any award or damages. This was a small cut which was cleaned and a bandage was applied. That was the end of it. Claimant sustained no compensable damages. The allegations of this part of the claim are totally unsupportable. Accordingly, the claim is dismissed in its entirety.

All motions not heretofore ruled upon are now denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.


March 23, 2006
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims