New York State Court of Claims

New York State Court of Claims

LEWIS v. THE STATE OF NEW YORK, #2006-013-512, Claim No. 104581


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:
Defendant's attorney:
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

Official citation:

Appellate results:

See also (multicaptioned case)


The claim herein was filed on July 16, 2001, alleging negligence by a correction officer employed by the Defendant resulting in a serious injury to Claimant's back. Claimant alleges that on May 7, 2001, he hurt his back following an order by Correction Officer (CO) Cooper to lift two extremely heavy bags of garbage in the mess hall at Wende Correctional Facility (Wende). The claim contends that he was taken to the facility hospital on a stretcher because he was unable to walk. Claimant testified that he has required continuing medical treatment, different medications, physical therapy, occasional use of a cane and has had surgical recommendations.

Negligence is predicated on the allegation in the claim that there was an existing prior medical department "no work" order issued on May 4, 2001, and that Claimant had been given a brace to support his back on that date. It is alleged that CO Cooper, despite having allegedly been told by Claimant of such "no work" order, gave a direct order to Claimant to lift said garbage bags, which were estimated to weigh no more than 20 pounds. The failure to obey a direct order would have subjected Claimant to disciplinary action, and since CO Cooper placed Claimant in an untenable situation, Claimant complied and suffered the injuries complained of, including a "pinch [sic] nerve" in his lower back.

Claimant testified at trial consistently in accordance with the allegations of his claim, although he was somewhat hazy on certain of the dates. Claimant had sought the appearance of a fellow inmate, and although the Defendant attempted to ascertain that inmate's willingness to testify, there was no response to such request. Regardless, Claimant advises that his primary purpose in seeking such testimony was to corroborate the issuance of the direct order to perform the work, and that is not in question, as CO Cooper acknowledged issuing that order.

At first glance, based solely on the allegations of the claim and Claimant's testimony, it appears that Claimant has alleged a prima facie case of negligence for ordering him to perform certain work duties in direct contravention of a viable medical restriction.

But, and this is a significant but, there is a fatal gap in the evidence before me. While Claimant's extensive medical record of over 850 pages was admitted into evidence (Exhibit A), and Claimant offered copies of certain medical/work restrictions (Exhibit 1), no document in evidence contains a "no work" or "no heavy lifting" order that was in place or effect on the day of this incident, on May 7, 2001. Indeed, there were other limitations and restrictions close in time to May 7, 2001, but not for that day. Specifically, there was a medical restriction in effect from April 27, 2001 until May 3, 2001, which noted,
inter alia, no work and no heavy lifting (Exhibit A, p. 606). There also was a May 4, 2001 medical restriction that Claimant characterized as a permit, allowing Claimant to use a cane for the period from May 4, 2001 until June 30, 1001 (Exhibit A, p. 602). The cane permit contained no other restrictions.
There is nothing in the record covering any limitation on Claimant's work or recreation, or any medical restriction for May 7, 2001, except for the permit allowing use of a cane. I realize, of course, that a permit to use a cane implies some need therefor, but, in the absence of documentation that would have put the Defendant's correction staff on notice of an existing medical restriction, there can be no negligence imputed in directing Claimant to perform a task, the lifting of garbage bags, that was a normal and regular duty to which he was assigned while on mess hall duty. To attribute negligence to the State, Claimant would have had to provide proof that he was under a medical restriction on the date he was allegedly injured. He has failed to do so.

Accordingly, the State's motion to dismiss for the failure to establish any evidence of negligence, made at the close of proof, is therefore granted, and the claim is dismissed.

All motions not heretofore ruled upon are now denied.


March 23, 2006
Rochester, New York

Judge of the Court of Claims