New York State Court of Claims

New York State Court of Claims

SIMPSON v. THE STATE OF NEW YORK, #2007-013-014, Claim No. 105730, Motion No. M-73284


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: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 23, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


On May 16, 2007, the following papers were read on motion by Defendant for summary judgment dismissing the claim:

Notice of Motion, Affirmation and Exhibits Annexed

Opposing Papers: None

Filed Papers: Claim; Answer

Upon the foregoing papers, this motion is granted.

The Defendant seeks summary judgment dismissing the claim. The claim herein, filed on March 11, 2002, alleges “assault and battery and medical negligence of the Defendants in that the Wende Correctional Facility (Wende) personnel and medical personnel have deviated from accepted rules, regulations, and medical practice, that the deviation led to Claimant [sic] injuries.” The claim is alleged to have accrued on March 23, 2001. The Defendant characterizes the claim as also asserting a cause of action for the use of excessive force (referenced in the notice of intention - Exhibit A to Defendant’s motion).

Defendant filed and served its answer dated April 16, 2002. On the same date the Defendant served a demand for a verified bill of particulars, a notice for discovery and inspection, and an expert witness disclosure demand pursuant to CPLR 3101(d) (Exhibit D). Claimant has not served or filed any discovery demands.

The claim asserts that Claimant was stopped by a “gang of [correction officers]” who beat Claimant about the “body, head and back” and that he managed to fend off the attacking officers. He alleges that he locked himself in a storage room, whereupon he was sprayed in the face with a fire extinguisher, and then officers began punching, stomping and slamming his head on the floor, rendering him unconscious. After regaining consciousness, while handcuffed behind his back, he contends that he was beaten about his head, back and legs with batons. He asserts that he was dragged and thrown down three flights of stairs, then taken to the infirmary, where the nurse ignored his complaints (limited to pain in his head and ears - see ¶15 of the Claim), told him nothing was wrong with him and denied his request to see an outside physician for his injuries.

The Defendant addresses what it perceives to be inconsistencies in the description of the incident between the notice of intention to file a claim (Exhibit A) and the claim. Specifically, the Defendant notes that the notice of intention, served on May 24, 2001, two months after the incident, makes no mention of Claimant being dragged down three flights of stairs, and alludes to being struck in his hand and face, head and feet, back and penis and injuries including “head trauma, swollen ankles and wrist, assumed knee fracture, blindness of right eye and constant pain in penis area and damage back causing Simpson to lose feeling in hand, urine blood and constant pain, penis and back” (Exhibit A). Moreover, Defendant observes that during the disciplinary hearing conducted on April 6, 2001, less than two weeks after the incident in question, Claimant never testified about being dragged and/or thrown down any stairs (Exhibit J - particularly p. 13).

The Defendant’s motion describes a different scenario, starting with an assault by Claimant on Correction Officer (CO) Tina DeJesus in which she was injured, possibly knocked unconscious and requiring medical treatment at the Erie County Medical Center (ECMC). CO Paul MacNeil was allegedly struck by Claimant with a CO’s baton and was taken by ambulance to Buffalo General Hospital for treatment. CO Charles Rizzo was also struck by Claimant with the baton, but then struck Claimant with his own baton. CO Rizzo was injured and taken by ambulance to Buffalo General Hospital. CO Daniel May exchanged baton strikes with Claimant, was injured and taken to an outside hospital. CO Preston Shropshire, who was struck by the baton wielded by Claimant and struck back at him, was injured but did not require hospital care. CO James Hager also was injured while restraining Claimant.

As Defendant summarizes, six correction officers were injured during this incident, and several other correction officers were involved in the incident, albeit without sustaining any injury requiring treatment.

The Defendant recites the subsequent proceedings resulting from the incident. Without dispute or contradiction, Defendant describes the misbehavior reports contained within the Tier III hearing Packet (Exhibit H), and appends the transcripts of the disciplinary hearing (Exhibits I and J). The hearing officer found Claimant guilty on all counts: assaults on staff, refusing direct orders, violent conduct, creating a disturbance, weapons possession, interference with staff, threats and property damage (Exhibit J - pp. 25-26) for which he was disciplined by a ten-year sentence to the Special Housing Unit, ten-year loss of packages, commissary and phone privileges from March 21, 2001 to March 23, 2011, determinations that were upheld on appeal (Exhibit K). Counsel for the Defendant avers, under oath, that to his knowledge, after a check of computer records maintained by his office, that Claimant did not seek any review of those findings pursuant to CPLR article 78.

Additionally, Defendant describes criminal proceedings brought against Claimant relating to the incident which forms the basis of this claim. Defendant appends an indictment by the Erie County Grand Jury on June 20, 2001 charging Claimant with four counts of assault, Penal Law §120.05-7, and one count of possession of a dangerous weapon, Penal Law §265.02-1 (Exhibit L). The assault charge is a class D felony, relating to actions of someone confined in a correctional facility who, with intent to cause physical injury to another person, causes such injury to such person or a third person. Claimant, represented by counsel, entered a plea of guilty to each of the four counts of assault, as charged, and was sentenced as a second violent felony offender with terms of imprisonment of five years on each count, to be served consecutively to his 1984 sentence of 30 years to life (Exhibit N). Claimant filed a notice of appeal (Exhibit O), which was dismissed on May 18, 2004 for Claimant’s failure to timely perfect his appeal (Exhibit P).

Summary judgment is sought, inter alia, on the ground that Claimant is collaterally estopped from relitigating issues which have necessarily been decided in a prior action and would be decisive of the current action, where there has been a full and fair opportunity to contest the decision now said to be controlling (see S.T. Grand, Inc. v City of New York, 32 NY2d 300, 304). As Defendant posits, and Claimant by his default here does not dispute, Claimant’s guilty plea and the dismissal of his appeal, would appear by the judgment of the criminal court to be dispositive of the issues of fact and law necessarily decided therein (Gramatan Home Investors Corp. v Lopez, 46 NY2d 481), including claims that could have been raised in the prior litigation but were not.

This latter issue is pertinent in that the claim here implies that Claimant’s actions were based upon his fear for his life (¶11), providing a putative justification of self defense for his actions. However, the Defendant cogently observes that Claimant, in entering guilty pleas to the four criminal assault charges brought against him by Correction Officers DeJesus, MacNeil, Rizzo and May, should not be otherwise permitted to raise that issue in this Court in support of his claim, and thus relitigate an issue that he could have, but did not raise, in the criminal prosecution (see Olsson v MacDonald, 16 AD3d 1017).

Given the Claimant’s default on this motion and the discussion above, I am compelled to grant the motion seeking summary judgment dismissing the allegations of assault and battery. The remaining cause(s) of action sound in medical negligence in that Wende personnel and medical personnel have “deviated from accepted rules, regulations, and medical practice, [and] that the deviation led to Claimant injuries.” Additionally, the degree of injury actually sustained can form support for allegations of excessive force.

Among the injuries Claimant allegedly sustained in this incident were “blind by fire extinguisher” (Exhibit B - ¶12); being dragged and thrown down three flights of stairs, and being beaten across the head, back and legs with batons, all while his hands were cuffed behind his back (Exhibit B - ¶¶ 13 and 14). He alleges that he complained of pain in his head and ears, but “Defendant refuse to send Claimant to outside doctor for his injuries [emphasis supplied] (Exhibit B - ¶15). The notice of intention, sworn to on May 2, 2001, alleges the “fracture [of] Simpson fingers again,” head trauma, swollen ankles and wrist, assumed knee fracture, blindness of right eye, blood in his urine, and constant pain in his penis and back. At the disciplinary hearing on April 6, 2001, Claimant alleged that he sustained a fractured arm, a fractured leg, and that he needed stitches, but they wouldn’t send him to the hospital (Exhibit J - p. 13). Claimant has not otherwise elaborated upon or described his injuries beyond the references noted above, or in his answers to discovery and inspection (Exhibit E) or to the Defendant’s demand for a verified bill of particulars (Exhibit F). As best as can be determined from the claim, it is solely the alleged failure to send him to an outside doctor that forms the basis of the allegations of medical negligence.

In support of its motion seeking dismissal of the allegations sounding in medical negligence, Defendant supplies the affidavit of Jacqueline R. Levitt, MD (Exhibit Q), the Medical Director at Wende. Dr. Levitt’s review of the notice of intention, the claim, the bill of particulars, Claimant’s relevant medical records from March 1, 2001 through December 31, 2001, and her professional opinion are not challenged, contradicted or opposed by Claimant.

Dr. Levitt’s review of the medical records reveals that the only injuries sustained by Claimant as a result of the events of March 23, 2001 were a reinjury to his right hand, a minor laceration of approximately one inch to his right eyebrow, and minor lacerations and abrasions (Exhibit Q - ¶9). She notes that on the following day he complained of pain on the top and back of his head, neck pain and bleeding from his head and mouth. She notes that he was then admitted to the infirmary at Wende, on March 24, 2001, but refused an MRI, a CATT scan, a mental health referral, and signed himself out of the infirmary against medical advice.

It is Dr. Levitt’s opinion, with a reasonable degree of medical certainty, that the documented complaints made by Claimant to Wende medical staff were “largely uncorroborated by examination and testing and there was no medical necessity to transfer him to an outside hospital, as Wende was fully equipped [to] meet his medical needs at that time [emphasis supplied]” (Exhibit Q - ¶12). Moreover, given the allegations of injuries purportedly sustained, it is her opinion that his “injuries do not medically corroborate his version of events after he was subdued” (Exhibit Q - ¶13).

While the Defendant acknowledges that in a motion for summary judgment dismissing a claim, generally the Claimant’s allegations are deemed to be true, a court need not accept as true factual allegations that are either inherently incredible or flatly contradicted by documentary evidence (Fernicola v New York State Ins. Fund, 293 AD2d 844). While Claimant’s Bates-stamped medical records were not attached to Dr. Levitt’s affidavit, her chronology of his medical records (Exhibit B to her affidavit), supported and confirmed by other documents in the motion papers (i.e. Exhibit G - pp. 21-22, the Tier III hearing packet), permit me to determine that Claimant’s allegations of the injuries he sustained are incredible of belief and contradicted by his medical records as reported by Dr. Levitt. The only direct allegation supporting assertions of medical negligence is Claimant’s assertion that the medical staff refused to send him to an outside doctor for treatment. Given his refusal of steri-strips for the one-inch laceration (Report of Inmate Injury - Exhibit G - p. 21), as well as his refusal of certain other tests, and Dr. Levitt’s opinion that she did not see what a physician would expect to see, “documented in his medical records evidence of extensive lacerations, extensive bruising, and extensive abrasions to those areas of his body” (Exhibit Q - ¶13), there is nothing to support a cause of action sounding in medical negligence for refusing to send Claimant to an outside doctor.

All in all, upon review of the moving papers before me, all the pleadings and unrefuted documentation appended to the motion, and noting Claimant’s default, I hold that Claimant’s allegations of medical negligence are incredible and unsupported. Accordingly, to the extent that the Defendant seeks summary judgment (1) dismissing the allegations of the use of excessive force as commensurate injuries are not supported by the medical evidence before me, and (2) dismissing the allegations of medical negligence, the motion is granted.

Accordingly, the motion is granted in its entirety and the claim is dismissed. The trial of this matter, scheduled to be conducted on June 12, 2007, is therefore cancelled.

May 23, 2007
Rochester, New York

Judge of the Court of Claims