New York State Court of Claims

New York State Court of Claims

TAYLOR v. THE STATE OF NEW YORK, #2006-030-015, Claim No. 109914


Synopsis



Case Information

UID:
2006-030-015
Claimant(s):
BASHAN TAYLOR
Claimant short name:
TAYLOR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109914
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
BASHAN TAYLOR, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
July 17, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
BaShan Taylor alleges in Claim Number 109914 that Defendant’s agents assaulted him while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing) on or about December 20, 2003. Trial of the matter was held at Sing Sing on May 19, 2006.
As an initial matter, Defendant moved to dismiss the claim based upon its Ninth Affirmative Defense, that the Court lacked jurisdiction over the claim because it had not been served upon the Defendant within ninety (90) days of its accrual in accordance with Court of Claims Act §§10 and 11. More specifically, Defendant noted that an unverified pleading had been served on or about August 30, 2004, that was rejected as a nullity and returned the same date in conformance with the requirements of Civil Practice Law and Rules §3022. Later, another copy of the claim was apparently received on October 1, 2004 - according to the Answer - and it is this claim to which the Answer responds. Additionally, even if the original claim had been properly verified, based upon an accrual date of December 20, 2003, the unverified claim served on August 30, 2004 was untimely, as was the claim received on October 1, 2004.
The Claim filed with the Clerk’s office is filed-stamped October 1, 2004. No proof of service was filed with the clerk.
Claimant indicated that he had served an “intent”
[1]
and submitted photocopies of certified mail receipts directed to both the Court of Claims and the Office of the Attorney General. [Exhibit 1]. Unfortunately, the postmark is largely illegible, [see id.], although Claimant indicated that it was “on April 12” when it was sent. He did not say of what year. Notably, if this had been a Notice of Intention to file a claim that was received by the Attorney General’s Office on April 12, 2004, it would still have been served more than ninety (90) days after accrual of the claim, and thus would not operate to toll any service and filing period of the claim itself. The Assistant Attorney General attested for the record that no notice of intention had been received by her office.
Assuming an accrual date of December 20, 2003 as alleged in the claim, a notice of intention to file a claim, or the claim itself, should have been served upon the Attorney General within ninety (90) days, or on or before March 20, 2004. Claimant has not established that he served either a notice of intention or a claim upon the Attorney General within that time frame.
The filing and service requirements contained in Court of Claims Act §§10 and 11 are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989); see also Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000). Indeed, the statute provides in pertinent part “. . . [n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim . . . ” Court of Claims Act §10. Court of Claims Act §11(a)(i) provides that “. . . a copy [of the claim] shall be served personally or by certified mail, return receipt requested, upon the attorney general . . .” within the time prescribed in Court of Claims Act §10; and service is complete when it is received in the Attorney General’s Office. “. . . Any notice of intention shall be similarly served upon the attorney general within the times hereinbefore provided for service upon the attorney general.” Court of Claims Act §11(a)(i). Service upon the Attorney General by ordinary mail is generally insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §§10 and 11; Edens v State of New York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998).
The Claimant has the burden of establishing proper service [Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989)] by a preponderance of the evidence. See Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the defendant. 22 NYCRR § 206.5(a).
Here, the Claimant has not established that he timely served the Claim upon the Attorney General as required, and the Defendant has properly raised the jurisdictional issue in its Verified Answer. Timely and proper service
[2]
of a Notice of Intention upon the Attorney General would toll the limitations period to allow for service of the underlying claim within one (1) year of its accrual. See Court of Claims Act §10(3-b). This, too, did not occur.
Accordingly, Claimant has failed to establish, by a fair preponderance of the credible evidence, that the Attorney General was served with a copy of the claim as required by Court of Claims Act §11(a), thus this Court does not have jurisdiction to hear the Claim. Defendant’s motion to dismiss, upon which decision was reserved at the time of trial, is hereby granted in its entirety, and Claim Number 109914 is dismissed on this ground alone.
More substantively, Claimant did not establish by a preponderance of the credible evidence that Defendant’s agents assaulted him. Mr. Taylor testified that he first arrived at Sing Sing on December 10, 2003. He was on his way to “basement rec” shortly after his arrival at Sing Sing when he was stopped by an Officer Figueroa, who demanded that he immediately show her his identification. He immediately complied. Two days or so later, remembering that this particular officer had required his identification, he was again walking toward basement recreation holding his identification right in his hand, and was again told to show his identification. He immediately complied. On December 20, 2003, he again was on his way to basement rec, but the gate was closed almost immediately before he could get through. Claimant tapped on the gate, and Officer Figueroa exclaimed that the action hurt her hand. When Claimant apologized, he was directed to return to his cell.
While sitting in his cell, an Officer D. Bennett, came up. After some colloquy, the officer slapped Claimant in the face. Claimant was directed to put his hands in his pockets, and then Officer Bennett “passed . . . [him] over to Officer Figueroa.” Officer Figueroa proceeded to strike him “in the mid-section” with a stick. When Claimant “jerked . . . [his] hands out” she started hitting him “like crazy, poking . . . [him] in . . . [ his] mid-section and on . . . [his] penis . . . [He] could see a big red spot” he said was later depicted in photographs taken. She also hit him over the head with a stick. He said he has headaches to this day.
Claimant said that by filing this claim, he was looking for money to “pay for his treatment.” He said he has headaches and seizures, and “they take . . . [him] to the doctor after the seizures” when “they feel like it.” He said he receives no medical help, but also recited a series of medications he is prescribed and takes.
On cross-examination he explained that he was originally on the way to recreation, was called out from recreation back to his cell upstairs by Officer Figueroa. Thereafter, D. Bennett went to the cell, pat frisked him, and took him back down to Officer Figueroa by the metal detector. When Officer Bennett slapped him, Officer Figueroa was standing by. Claimant said that “many correction officers, and sergeants were standing around, all ignoring the situation”. He said while Officer Figueroa was beating him, “other officers were walking around smirking”. He explained that Officer Bennett “passed” him to Officer Figueroa, by holding him by the collar.
Although he had not been in Sing Sing specifically for very long, Claimant acknowledged that he was familiar with facility rules regarding approaching gates and responding to orders. Claimant said he was aware that a visitor, “or someone”, had just gone through the gate Officer Figueroa was stationed at when he approached, and was aware that permission is always required to go through a gate. He explained that there are a “few gates”. There is a gate at the housing area, a gate “to the front of the area”, then a gate in the “staircase area where . . . [Claimant] was.” He admitted that when officer Figueroa shut the gate - “slammed it in . . . [his] face” - she might have done it because Claimant was not allowed to go through at that specific time. There were other inmates there waiting as well, who then proceeded through the gate after the visitor had gone through, after she had shut the door. It was then that he “tapped” the gate, as if to say “it’s getting crowded out here.” Officer Figueroa said “don’t push the gate, my hand is there.” She let people through, but told him to “step out.” He had no idea why she singled him out, except that she was with other correction officers known for “beating up inmates.”
Claimant acknowledged receiving a misbehavior report based upon this incident, and that he was found guilty. [Exhibit 2]. He also acknowledged that he is “about 270 pounds,” that Officer Figueroa is smaller, and that he “could make a gorilla look small.”
Officer Figueroa testified briefly, and confirmed the version of events presented in the misbehavior report she wrote up concerning this incident. [See Exhibit 2].
On December 20, 2003 she was working the 7 a.m. to 3 p.m. shift. She was an “A-Gallery Officer, in charge of approximately 70 inmates, and was working at the five building rec gate.” She could not recall who was working with her specifically that day, but did recall that Officer Bennett was working in the building. She described the gate as located “in the basement, off of the stairs going up to the rest of the gallery. The rec gate is in the middle.” She was located “at the basement gate, off A-Gallery, off five building.” From where she was standing, she could see the A-gallery, five building entrance gate.
At 9:45 a.m. an inmate from her gallery was called up from recreation for a visit. After confirming that he indeed had a visit, when the inmate came to the gate from recreation she opened the gate in the basement gate area for that inmate only. Once the inmate who had the visit came through, inmate Taylor suddenly pushed through the gate, keeping it open - her key was still in it - knocking her off balance but she “didn’t fall”. She told Claimant to stop. When she caught herself from falling, and after she told him to stop and he did not, she drew her baton and struck inmate Taylor once on the left leg, with the purpose of “slowing him down, getting him to stop.” Thereafter, he “seemed to get more aggressive, he clenched his fists and came
at . . . [her]”, and although she kept telling him to stop, he did not. She was in “fear for. . . [her] life.” Although she was aiming for his arm, she accidentally struck him in the head once because he had ducked. The inmate did not say anything the entire time. After that, “the inmate became compliant, he was put up on the wall, . . . [she] notified . . . [her] area sergeant, and . . . [Mr. Taylor] was escorted to medical.”
The proper procedure when coming to a gate, Officer Figueroa said, is to come “with an escort, or a pass, or an id, with some reason to be coming through.” She had no idea where Claimant was going. There were no other inmates there when this occurred. Claimant was in the basement recreation area already, not coming from housing as he described. “Once you are in the rec area” Officer Figueroa said, “there is no go back until 10:30.” She had no idea where Mr. Taylor was going or what he wanted. After the inmate “became compliant”, Officer Figueroa notified the officer in charge of the problem. Officer Bennett came by as did the sergeant in charge she had spoken to, who then escorted Claimant to the emergency room at the facility. She saw that he was bleeding from his head, she did not see any other injuries, nor did she strike him anywhere other than where she described.
She reaffirmed that she did not use excessive force against this Claimant, and did not see any other officers strike Claimant. She was never brought up on departmental charges concerning this incident, nor was she charged criminally. She confirmed that an investigation by the Inspector General’s Office was undertaken and the incident was found to be “unsubstantiated.”
No other witnesses testified and no other evidence was submitted.
Use of physical force against an inmate is governed by statute, regulation, and the attendant case law. The statute provides in pertinent part “. . . [w]hen any inmate . . . shall offer violence to any person, . . . or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline,[and] to secure the persons of the offenders . . . ” Correction Law §137(5). As set forth at 7 NYCRR § 251-1.2 (a), an officer must use “. . . [t]he greatest caution and conservative judgment . . . in determining . . . whether physical force is necessary; and . . . the degree of such force that is necessary.” Once an officer determines that physical force must be used, “. . . only such degree of force as is reasonably required shall be used.” 7 NYCRR § 251-1.2(b). The State may be liable for the use of excessive force by its employee under the concept of respondeat superior. See Jones v State of New York, 33 NY2d 275, 279 (1973); Court of Claims Act §8.
To assess whether force was necessary, or whether the particular degree of force used was reasonable, “. . . a Court must examine the particular factual background and the circumstances confronting the officers or guards (see e.g. Lewis v State of New York, 223 AD2d 800; Quillen v State of New York, 191 AD2d 31; Brown v State of New York, 24 Misc 2d 358). Often the credibility of witnesses will be a critical factor in these determinations (Davis v State of New York, 203 AD2d 234).” Kosinski v State of New York, Claim No 97581 dated November 30, 2000, Sise, J., #2000-028-0012 citation omitted.
Before turning to any question of the degree of force, however, resolution of this claim rests upon the relative credibility of the Claimant and Correction Officer Figueroa, and the evidence Claimant presented to substantiate his claim. It is Claimant who has the burden of proof, and Claimant’s version of events suffered from internal inconsistency. On balance, the Court cannot credit the Claimant’s testimony, and thus based upon a preponderance of the credible evidence, the claimant has failed to establish that he was assaulted as he described. Resolving issues of credibility is the province of this Court as the trier of fact. LeGrand v State of New York, 195 AD2d 784 (3d Dept 1993), lv denied 82 NY2d 663 (1993).
Here, the Claimant did not establish that excessive force was used. There was no evidence, other than the self-serving testimony of the Claimant, that force beyond that described by Correction Officer Figueroa was used by correction officers. She credibly testified as best as she could recall to events occurring more than two (2) years before the date of trial. No objective information - including medical records showing injury, or other documentation - has been presented to the Court to support the claim.
As a matter of substantive law, Claimant has failed to establish by a preponderance of the credible evidence that he was assaulted by correction officers.
Accordingly, Claim number 109914 is hereby dismissed in its entirety both because the Court lacks jurisdiction to hear the claim because it was not served and filed on a timely basis, and on substantive grounds as well.
Let judgment be entered accordingly.


July 17, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. All quotations are to trial notes or audiotapes unless otherwise indicated.
[2]. There has been no requirement that the Notice of Intention be filed with the Clerk of the Court of Claims since 1995.