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
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
, 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
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
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
Court of Claims Act §10(3-b). This, too, did not
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
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
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.
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.”
testified briefly, and confirmed the version of events presented in the
misbehavior report she wrote up concerning this incident. [See
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.”
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.
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
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
, Claim No 97581 dated November 30, 2000, Sise, J., #2000-028-0012
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
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.
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