New York State Court of Claims

New York State Court of Claims

BUSH v. STATE OF NEW YORK, #2007-018-581, Claim No. 105008


The Court finds that Claimant was not injured by Defendant’s employees. Claim is dismissed.

Case Information

1 1.The Court has sua sponte amended the caption to name only Diego Bush as Claimant, as he is now 21 years of age and no longer an infant.
Claimant short name:
Footnote (claimant name) :
The Court has sua sponte amended the caption to name only Diego Bush as Claimant, as he is now 21 years of age and no longer an infant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
GUTTMAN & WALLACEBy: Richard M. Wallace, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 10, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant was an infant ward of the State of New York from April 2000 until approximately December 2000, housed at the Tryon Residential Facility (hereinafter Tryon) in the Birchwood II Dormitory in Johnstown, New York. Claimant seeks damages for the injuries he sustained at Tryon on September 28, 2000.

Claimant testified about the events of that evening. Claimant and Charles Cox, another resident in the Birchwood II Dormitory with whom Claimant got along, and three other residents were in the tv room[2] on September 28, 2000, around 9:15 p.m. The recreation room in Birchwood II was a large rectangle shaped room partially divided by a half wall with open square metal frames at the top half. The half wall partition divided the main recreation room from the tv room. The tv room was a smaller rectangle with three solid walls with high windows. The tv was located roughly in the middle of the half wall partition dividing the tv room from the remainder of the recreation room. The tv was positioned above the half wall on a shelf supported by the open metal frames so that the back of the television was visible from the other side of the partial wall. Furniture, cushioned couches and chairs, surrounded the perimeter of the tv room. Claimant was sitting on a couch which had been moved to the middle of the tv room in front of the tv. Mr. Cox was sitting to the right of and next to Claimant in front of the television on the couch. Mr. Cox wanted to hand play (slap box) and Claimant said no. Mr. Cox then sucker punched Claimant on the right side of his face. Claimant was stunned and surprised by the punch; then the two stood up and started scuffling. Mr. Cox tackled Claimant and he landed on another couch in the corner of the room where the boys continued to fight. Mr. Sanjurjo, a staff member who was in the tv room, called out for assistance. Staff members Ronny Havel and Anthony Neri responded.[3]

Mr. Havel came in first from the recreation room area. Claimant testified that Mr. Havel remained on the recreation room side of the half wall and grabbed Cox and pulled him through the opening of the metal frame of the half wall partition. Mr. Neri went into the tv room and picked Claimant up and threw him to the left slamming him onto the floor. Claimant testified his face hit the metal base of a large fan right behind the couch in the middle of the room. He was bleeding so Mr. Neri sat him down and got a towel. Claimant had three lacerations to his right eye. Ultimately, it was determined that Claimant had a concussion and a fractured eye socket. Claimant said he did not want to eat or leave his room for three to five days after the incident. Mr. Neri wrote a report about this incident to the facility nurse.[4]

On cross-examination, Claimant admitted that he refused to go to the hospital for treatment that night. He only wanted to go to sleep. As a result of his fighting with Mr. Cox that night, Claimant lost privileges for five days. He said he didn’t contest the disciplinary action because he would be without privileges waiting for his hearing so there was no point.

The weekend after the incident, Claimant spoke with his father indicating for the first time that his face hit the fan. Claimant’s father insisted on outside medical treatment for him. Claimant presented the testimony of Anthony Neri, via deposition transcript.[5] Mr. Neri began to work at Tryon on a temporary basis as of October 19, 1995, and became a permanent hire on May 5, 1996. According to his training record,[6] Mr. Neri was given a 16-hour course in crisis management and physical restraints beginning on February 12, 1996. He testified that he had refresher courses and received written materials as well. These materials included the policy on the use of physical force[7] that was in effect on the date of this incident. In 1998 or 1999, Mr. Neri took a course to become a CM/PR (Crisis Management/Physical Restraints) trainer. [8]

The only physical restraint the counselors were taught to use on the juvenile residents was the “high hook.”[9] It involves getting behind the resident and hooking his arms. Then the counselor steps back and bends one knee, while the resident sits on the floor. The resident is then turned over lying face down and restrained.1[0] The size of the resident may require some variations to this technique.

On the night of the incident, both Mr. Neri and Mr. Havel were at the night desk when Mr. Sanjurjo called for assistance. Both of them rushed to the recreation room; Mr. Neri first, where he saw a fight in progress between Claimant and Charles Cox. Mr. Sanjurjo was trying to separate them by attempting to restrain Mr. Cox using the “high hook.” Claimant did not recall Mr. Sanjurjo attempting to restrain Mr. Cox. Mr. Sanjurjo was backed up against the furniture by the half wall partition. Claimant was throwing punches in their direction. Mr. Neri grabbed Claimant, with his hands on Claimant’s arms and tried to hook him and as he did, he pulled Claimant to the floor. Claimant fell face down with his left cheek on the floor. As Mr. Neri knelt down to restrain him, he noticed a contusion to Claimant’s right eye. He then got Claimant up and administered first aid, bandages and a cold compress. The nurse, central security, and the administrator on duty were all notified. Mr. Neri said Claimant did not hit the fan when he fell. Mr. Neri completed an incident report.1[1]

Claimant was taken to see the nurse. The health report1[2] indicated Claimant needed sutures but he refused treatment. “Steri-Strips”1[3] were applied to his upper and lower lid lacerations and an ice pack was given. Claimant refused to take an ice pack back to his room

with him.

On September 30, 2000, Mr. Neri completed an Observation Report1[4] indicating Claimant’s lack of appetite and lethargy. At a later date, Mr. Neri was interviewed by supervisory personnel about the incident.1[5]

Claimant was seen by an outside physician on October 5, 2000. He had a broken eye socket which was surgically repaired on October 10, 2000.

The State called Rodney Havel, the other counselor on duty that night, and Edward Ausborn, the Assistant Director at Tryon. Mr. Havel’s account was similar to that of Mr. Neri.

Mr. Havel testified that he responded to Mr. Sanjurjo’s call for assistance by following Mr. Neri into the tv room. He did not enter over the half- wall or remove Mr. Cox through the partition as Mr. Cox was approximately five feet, eight inches tall and approximately 200 lbs. Mr. Havel indicated Mr. Cox was frequently involved in fights. Mr. Havel testified that upon entering the tv room, Mr. Neri moved Claimant out of the way while he assisted Mr. Sanjurjo. Mr. Havel didn’t really see how Mr. Neri moved Claimant, but thought he may have let Claimant go after he moved him. Mr. Havel asked Claimant how he was later on, and Claimant never mentioned he hit the fan when he fell.

Mr. Ausborn testified that he initially reviewed the circumstances surrounding the incident because of the use of restraint/physical force. Based upon this review, Mr. Ausborn didn’t find that a further investigation was necessary. Thereafter, Claimant’s father called Mr. Ausborn and raised concerns about the lack of notification and the use of force during the restraint. A further investigation was commenced to assess whether proper policies and procedures had been followed during the incident. The incident was investigated by John Davis, the Senior Youth Director Counselor, as a matter of policy. Based upon that investigation, Mr. Ausborn concluded Claimant’s injury was the result of the fight and there was no excessive use of force found, and the matter was closed as of October 6, 2000.

An anonymous complaint was made to the New York State Central Register of Child Abuse and Maltreatment on October 12, 2000 regarding this incident. The incident was again investigated and the report of abuse or maltreatment was unfounded. This also resulted in a second internal investigation at the facility. The staff, Claimant, and Mr. Cox were all re-interviewed. According to Mr. Ausborn, the statements were virtually the same except for Claimant’s which then indicated his injury resulted from hitting his face on the fan.

Claimant’s father then petitioned Family Court to vacate Claimant’s placement alleging the use of excessive force by the Tryon staff. After a hearing, the petition was denied.

On cross-examination, Mr. Ausborn was questioned as to the appropriateness of Mr. Neri’s actions in not initially getting or attempting to get Claimant in a “high hook” restraint in accordance with the CM/PR training Manual.1[6] Mr. Ausborn testified that Mr. Neri may not have followed the manual, but given the circumstances of this incident that was acceptable. It was his opinion, since Claimant was still going after Mr. Cox and Mr. Sanjurjo who were enjoined in a “high hook” restraint and unable to defend against Claimant’s advances, that Mr. Neri used minimal force to separate Claimant. Both Mr. Ausborn and Mr. Havel testified that on occasion the restraint used must be modified based upon the circumstances.

Claimant has alleged assault and battery, use of excessive force, and negligent hiring,

training, and supervision of the State’s employees.
A. Assault and Battery/Excessive Force

The State may be liable for an assault and battery committed by an employee in carrying out their duties under the theory of respondeat superior (Jones v State of New York, 33 NY2d 275). An assault is the intentional placing of a person in apprehension of imminent harmful or offensive contact and a battery is the intentional non-consensual touching of another person causing offensive bodily contact (PJI 2d 3:2, 3.3 [2007]). Where a person is lawfully in custody the offensive contact or force may be privileged, that is permissible to effectuate or maintain custody and control, as long as the force used is only such force as may be reasonably necessary under the circumstances (PJI 2d 3:4 p. 22 [2007]; see Sheils v State of New York, Ct Cl, Collins, J., signed May 18, 2007, Claim No. 110349, UID #2007-015-556). Whether the force used was reasonable is viewed objectively (see Graham v Connor, 490 US 386, 396).

Here, the State has a specific policy outlining the parameters for the use of physical force, identified as PPM 3247.13 “Use of Physical Force”.1[7] The policy restricts the use of physical force to “only the minimum amount of force necessary to bring the resident/situation under control.” (PPM 3247.13, p. 2). “Force may be used only when necessary to protect one’s self or others, to protect a resident from self harm, to protect property, to enforce a direct order for the purpose of safety and control, to prevent escapes or to respond to an immediate threat to the safe, secure operation of the facility.”( PPM 3247.13, p. 4).

Defendant contends that the circumstances facing Mr. Neri and Mr. Havel allowed them to use physical force to restrain both Mr. Cox and Claimant. There is no dispute that the two residents were involved in a fist fight, and even after Mr. Cox was restrained, Claimant continued to swing at him. The need to protect both Mr. Cox and Mr. Sanjurjo from Claimant’s assaultive conduct is apparent. The policy allows the use of force in this situation. The question becomes whether or not the force used was excessive and if so, whether the Claimant’s injuries were caused by the excessive force.

The Court concludes that the answer to both questions is no. As with most excessive force battery claims, the credibility of witnesses is often a critical factor (see Davis v State of New York, 203 AD2d 234) coupled with a close analysis of the specific circumstances confronting the participants (see e.g. Wester v State of New York, 247 AD2d 468; Lewis v State of New York, 223 AD2d 800; Quillen v State of New York, 191 AD2d 31; Arnold v State of New York, 108 AD2d 1021, appeal dismissed 65 NY2d 723). The position of the two combatants and the urgency to prevent injury to resident Cox and Mr. Sanjurjo, who were unable to defend themselves, did not allow Mr. Neri to apply the approved “high hook” restraining technique initially. The use of other procedures was authorized when the hook was impractical. Mr. Neri contacted Claimant with his hands on Claimant’s arms and pulled him back away from Mr. Cox to the floor where Claimant landed face down. Even with the difference in size between Mr. Neri and Claimant, given the circumstances confronted, the Court does not find Mr. Neri used excessive force. Nor was the Court persuaded that Claimant’s injuries were the result of Mr. Neri pushing Claimant’s face onto the base of the fan. After reviewing the diagram and pictures of the tv room, along with the consistent testimony as to the placement of the furniture and the location of the fight, the Court questions whether the fan was even close enough for Claimant to strike it. Moreover, looking at the flat smooth base of the fan from the pictures the Court is not persuaded Claimant’s injuries, three lacerations to the right eye, could have been caused by a single push into the fan. Claimant’s position is further called into question by his own statements immediately after the incident in which he attributed his injuries to the fight.1[8] Claimant’s delay in asserting that the fall into the fan base caused his injuries raises significant doubts about its validity. There was no credible reason why Claimant would not have told the nurse what happened to him that evening. The Court finds that Claimant was injured by Mr. Cox and not as a result of Defendant’s employees.

Based upon this finding, there is no need to address the negligent hiring, training, or supervision portions of this claim.


September 10, 2007
Syracuse, New York

Judge of the Court of Claims

[2].See Exhibit 14.
[3].Both Mr. Havel and Mr. Neri were Youth Division Aides at Birchwood.
[4].Exhibit 20.
[5].Exhibit 21.
[6].Exhibit 18.
[7].Exhibit 3.
[8]. CM/PR Training Materials, Exhibit 2.
[9].All quotes are from the trial testimony unless otherwise noted.
1[0].Exhibit 3.
[1]1.Exhibit 19.
1[2].Exhibit E.
1[3].Exhibits E, H.
1[4].Exhibit 20.
1[5].Exhibit O.
1[6].Exhibit 2.
1[7]. Exhibit 3.
1[8].See Exhibits E, D.