New York State Court of Claims

New York State Court of Claims

SMALLS v. THE STATE OF NEW YORK, #2006-015-547, Claim No. 110178


State held not liable for sexual assault by female correction officer where evidence presented at trial was insufficient to establish that the State knew or should have known of tortious propensities of wrongdoing employee.

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:
Andrew F. Plasse, P.C.By: Andrew F. Plasse, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 18, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The claim herein seeks to recover damages for emotional injuries allegedly suffered as the result of sexual relations between a female correction officer and the claimant while he was an inmate at Clinton Correctional Facility in Dannemora, New York. The sexual assaults allegedly occurred on four to twelve different occasions between March and November, 2002. Trial of this bifurcated action took place on July 6, 2006.

It was undisputed at trial that a correction officer employed by the Department of Correctional Services (DOCS) engaged in sexual relations with the claimant on several occasions in exchange for money. Claimant sought disbursement of funds from his inmate account on at least two occasions, both of which were approved by the same female correction officer with whom the claimant was, at the time, engaged in a sexual relationship. An investigation performed by the DOCS Inspector General's Office ultimately led to the arrest of the correction officer, who admitted to having participated in sexual conduct with the claimant. As the result of the investigation and criminal charges brought against her, the correction officer resigned from her position on January 2, 2003.

As a basis for liability against defendant, the claim alleges:
15. That prior to the aforesaid rape and sexual abuse, the State of New York had actual and/or constructive notice that the corrections [sic] officer ...had performed oral sex and sexual intercourse with prisoners previously, and allowed her to continue her employment with the State of New York by virtue of its improper supervision, training, retention and hiring policies.

The law is well settled that in order to prevail on a theory of negligent hiring or retention it must be established that "the employer was on notice of the relevant tortious propensities of the wrongdoing employee" (Gomez v City of New York, 304 AD2d 374, 374-375, citing Detone v Bullit Courier Serv., 140 AD2d 278, lv denied 73 NY2d 702). Liability may attach only where the employer knew or should have known of the type of behavior causing claimant's harm ( Paul J.H. v Lum, 291 AD2d 894, 895; Yeboah v Snapple, Inc., 286 AD2d 204). In Rodriguez v United Transp. Co., 246 AD2d 178, involving the alleged rape of a mentally retarded adult by a bus driver, it was held that evidence of the bus driver's propensity for violence was necessary to defeat the defendant's motion for summary judgment. In so holding, the Court made clear that the existence of a special relationship, without more, is insufficient to impose liability on the employer. To hold otherwise, the Court noted, would make the employer an insurer of the safety of its passengers (id. at 182). Thus, it is clear that there must be proof that the defendant knew or should have known of the particular propensities complained of to prevail on a theory of negligent hiring or retention.

Here, there is no dispute that sexual contact occurred and that an inmate is deemed incapable of consent to a sexual act with an employee of the State Department of Correctional Services (Penal Law § 130.05[3][e]). The only question for determination is whether or not defendant was on notice of its employee's propensities to engage in the type of conduct alleged in the claim.

Claimant testified at trial that he engaged in sexual relations with the correction officer on approximately twelve occasions between April of 2002 and November of 2002, that the sexual assaults took place in the laundry room of the Clinton Annex[1], building 40-1, and that all of the incidents occurred after 2:00 a.m.

In support of his claim that defendant knew or should have known of the sexual propensity of the offending correction officer, claimant offered his own testimony and that of Lieutenant Wendell Bezio who, at the time of the alleged sexual assaults, was employed by the Department of Correctional Services as a Sergeant and responsible for the operation of the housing unit in which the claimant resided. Claimant testified that he sent a notice to the Inspector General's Office concerning the alleged sexual encounters in August of 2002. Neither the notice nor testimony describing its specific contents were offered in evidence at the trial. Claimant testified that he was interviewed by Lieutenant Bezio in November of 2002. According to the claimant, Lieutenant Bezio informed him that he was receiving anonymous "slips" from inmates which indicated that the claimant was having sexual relations with some of his officers. Claimant testified that as a result of this interview he was transferred from the Annex to the main housing unit at the Clinton Correctional Facility on November 14, 2002.

Lieutenant Bezio's testimony contradicted claimant's in several respects. Lieutenant Bezio testified that sometime during the fall of 2002 Captain Brown gave him an anonymous note which indicated that a female correction officer employed on the midnight shift was having sex with an unnamed inmate. He testified that there are repositories for such notes in several areas throughout the prison facility which allow the inmates to anonymously notify the staff regarding complaints or concerns. In response to this information, Lieutenant Bezio interviewed a female correction officer, the only female correction officer on the midnight shift, who adamantly denied the allegations. According to Lieutenant Bezio, anonymous notes such as the one provided to him by Captain Brown are often driven by self-serving motives of the inmates and are frequently false. He further testified that he had supervised the female correction officer from 1994 to 1998 and considered her to be a "good" officer. No further investigation was conducted at that time. The claimant was not interviewed with respect to the allegations in the note for the obvious reason that the identity of the inmate involved was not revealed in the note.

Lieutenant Bezio testified that he first became aware of the claimant in the fall of 2002 as the result of receiving anonymous notes from inmates alleging that he was involved in illicit drug use and gang-related activity. An investigation was conducted, including a urinalysis and a "cube frisk", which yielded no evidence to corroborate the notes. Lieutenant Bezio testified that the claimant requested to meet with him in November of 2002. During the meeting it became clear to Lieutenant Bezio that the claimant was worried that the notes the lieutenant had been receiving regarding the claimant's alleged drug use and gang-related activity could result in his transfer out of the Annex, possibly to another facility. According to Lieutenant Bezio, claimant became agitated during the interview and indicated that the Clinton Annex could not operate without him. On November 13, 2002 Lieutenant Bezio sent an interdepartmental communication to Captain Brown (Exhibit F) in which he expressed his concern that claimant viewed himself with such power. Contrary to the claimant's testimony, Lieutenant Bezio testified that at no time did he interview claimant with respect to his sexual involvement with a correction officer.

Captain Brown was the Correction Captain at the Clinton Annex and testified that he directed Lieutenant Bezio to interview a female correction officer in the fall of 2002 with respect to an anonymous note alleging that a female correction officer had been having sexual relations with an inmate. He testified that Lieutenant Bezio reported to him following the interview that the female officer had denied the allegations. No further action was taken with regard to the allegations although the witness did inform the midnight watch commander of the accusations contained in the note.

Captain Brown also confirmed the testimony of Lieutenant Bezio regarding the receipt of anonymous notes alleging the claimant's involvement in illicit drug use and added that it had also been anonymously alleged that the claimant was involved in gambling.

On November 14, 2002 Captain Brown wrote an interdepartmental communication to the Assistant Deputy Superintendent, received in evidence as Exhibit H, in which he recommended that claimant be transferred from the Annex to the main housing unit at the Clinton Correction Facility due to suspicion that he was involved in extortion, gambling and gang-related activity.

James Bezio, an Assistant Deputy Inspector General for the New York State Department of Correctional Services[2], testified that he received a letter signed by the claimant and dated December 4, 2002 (Exhibit D) in which the claimant indicated that he possessed bank receipts and other proof demonstrating that he had paid money to a particular correction officer. The reasons for the payments were not stated in the letter but the claimant promised to provide proof of the allegations in return for a transfer to a correctional facility of his choice. On December 17, 2002 Inspector Bezio interviewed claimant who informed him that he had engaged in sexual contact with a female correction officer. To support his claim the claimant provided Mr. Bezio a green towel containing, according to the witness, traces of DNA. The offending correction officer was thereafter arrested. The only evidence offered to establish that defendant knew or should have known of the propensity of the female correction officer to commit a sexual assault was the anonymous note in which it was alleged that a female correction officer who worked the midnight shift was having sexual relations with an unnamed inmate. The note was unsigned and neither the correction officer nor the inmate involved was identified by name. The only female correction officer employed on the midnight shift was interviewed and adamantly denied the allegation. Inasmuch as there was evidence that such anonymous notes are, not surprisingly, often motivated by a variety of factors and frequently untrue, it cannot be said that the defendant was negligent in failing to reasonably investigate the allegations.

In Doe v State of New York, 267 AD2d 913, lv denied 95 NY2d 759, is was held that the State could not be held liable for an alleged rape committed by a state trooper notwithstanding four prior complaints regarding the particular officer's conduct. The Court reasoned that "the investigation of the complaints against [the state trooper], the determination as to the level at which those investigations were to proceed, the evaluation of the witnesses' credibility, whether the charges were founded, unfounded or unsubstantiated, and, if founded, the punishment to be imposed are discretionary decisions to which, if based on a reasoned judgment, governmental immunity attaches" (id. at 915). The evidence presented at trial in this case likewise compels a similar conclusion that the investigation performed by the defendant following the receipt of the anonymous note, including the extent of the investigation and the judgments made regarding the weight or significance of the facts known or ascertained at that time, was a reasoned discretionary function to which governmental immunity attaches. Even in the absence of immunity there is simply no credible proof that the defendant knew or should have known of the correction officer's propensity to engage in sexual relations with inmates and the facts available to the defendant at the time of its investigation, consisting of an unsigned note in which neither the inmate nor the correction officer were identified, did not provide such notice. The claim of negligent retention must therefore be dismissed [3].

To the extent the claimant seeks to predicate his claim on a lack of adequate security and supervision of the area where the incidents occurred,[4] claimant failed to offer evidence that defendant violated a generally accepted penological standard of care (cf. Sanchez v State of New York, 99 NY2d 247) or that the sexual assaults were a foreseeable consequence of the defendant's negligence in failing to provide adequate supervision (Di Donato v State of New York, 25 AD3d 944). Although there was testimony to indicate the number of officers stationed in the building where the assaults occurred, no evidence was offered to establish the accepted standard of care or a violation thereof. As a result, to the extent claimant sought to predicate his claim on a lack of proper supervision, it fails as a matter of law.

Defendant's motion to dismiss, upon which decision was reserved at trial, is hereby denied. Upon due consideration of the evidence presented at trial, however, it is the finding of this Court that claimant failed to establish defendant's negligence by a preponderance of the credible evidence. As a result the claim is dismissed.

Let judgment be entered accordingly.

October 18, 2006
Saratoga Springs, New York

Judge of the Court of Claims

[1].The annex is a dorm-type housing facility which allows inmates greater freedom of movement.
[2].Inspector Bezio is Lieutenant Bezio's second cousin.
[3].No proof regarding the claim of negligent hiring was presented at trial and was therefore abandoned.
[4].Although the claim makes no reference to inadequate supervision, claimant's bill of particulars includes it among his allegations of negligence.