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,
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
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
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
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.
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
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
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. 
The only physical restraint the counselors were taught to use on the juvenile
residents was the “high hook.”
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
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
Claimant was taken to see the nurse. The health
indicated Claimant needed sutures
but he refused treatment.
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
On September 30, 2000, Mr. Neri completed an Observation
indicating Claimant’s lack of
appetite and lethargy. At a later date, Mr. Neri was interviewed by supervisory
personnel about the incident.1
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
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
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
Claimant has alleged assault and battery, use of excessive force, and negligent
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 ). 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 ; 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
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
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
Based upon this finding, there is no need to address the negligent hiring,
training, or supervision portions of this claim.
The claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.