New York State Court of Claims

New York State Court of Claims

MALLORY v. STATE OF NEW YORK, #2007-018-583, Claim No. 108885


Claim is dismissed, see Vehicle & Traffic Law § 1229-c[8].

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:
ANDREW F. PLASSE, P.C.By: Andrew F. Plasse, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Edward F. McArdle, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 1, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages from the State of New York when, on July 23, 2003, in the custody of the State of New York, he was injured while being transported for a medical procedure, as a result of the alleged negligence of a State employee. The trial was bifurcated and this Decision is on the issue of liability only.

On July 23, 2003, Claimant, an inmate at the Elmira Correctional Facility (hereinafter Elmira), was being transported in a Department of Correctional Services (hereinafter DOCS) van to the State University of New York Upstate Medical University (hereinafter referred to as University Hospital), to have a fistula placed in his hand for dialysis. The two transport officers accompanying Claimant that day were Correction Officer (hereinafter CO) John Peters, who drove the vehicle, and CO Martin Mechalke who rode in the passenger seat. Claimant was the only other passenger and was seated behind a security screen in the rear of the van.

Claimant testified that he was fully shackled that day, his hands were both cuffed and attached to a black box at his waist, and his legs were also shackled in accordance with the DOCS policies. After arriving in Syracuse, the DOCS van stopped short on Adams Street to avoid a collision. Claimant flew forward, hitting the security screen and fell to the floor of the van. Claimant testified he lost some teeth and was bleeding everywhere. Claimant’s injuries to his mouth and forehead were treated in the Emergency Room at University Hospital. Thereafter, he was unable to have the fistula inserted because of his injuries.

Claimant said that the seatbelts in the van which were available to him were a shoulder strap and another strap that would wrap around him from the seat. He was unable to use the seatbelts because of the arm restraints, and neither correction officer assisted him. He admitted he did not ask for help. Claimant said the correction officers had always buckled the seatbelts for him on other trips.

CO John Peters and CO Martin Mechalke testified for the State. Their testimony comported with that of Claimant with two exceptions. First, they both testified that CO Peters instructed Claimant to buckle his seatbelt, and Claimant did not do so. Secondly, both testified that Claimant had his left arm free from shackles, so Claimant could have buckled his own seatbelt. According to the officers, when a medical procedure is scheduled to be performed on a hand or an arm, the policy is not to cuff that hand.

The Court, after listening and observing the witnesses at trial, finds that Claimant had only one hand cuffed at the time of transport and, thus, had one hand available to attempt to buckle the seatbelt. In any event, it is undisputed that Claimant was not wearing a seatbelt.

CO Peters testified that as the van exited the highway near the hospital, another vehicle ran a red light, and he had to apply the brakes quickly to avoid a collision. Claimant was thrown into the metal security screen and fell onto the floor. After the incident, the officers parked the van and got out to check on Claimant. The officers took Claimant to the Emergency Room at University Hospital where he was treated. The fistula procedure had to be delayed.

It was Claimant’s position at trial[1] that the correction officers had a duty to ensure that Claimant was wearing a seatbelt in the van.[2]

Defendant, in opposition, argues that the DOCS van is an emergency vehicle as defined in the Vehicle and Traffic Law, and the transport of Claimant to the hospital for the scheduled fistula procedure constituted an “emergency operation” pursuant to Vehicle and Traffic Law

§ 1104 (b). Pursuant to that statute, Defendant argues it cannot be held liable unless it is found to have acted with reckless disregard for the safety of others, as an emergency vehicle in an “emergency operation” is exempt from the rules of the road.

Vehicle and Traffic Law § 1104 exempts an “authorized emergency vehicle” from certain rules of the road when it is involved in an “emergency operation.” An authorized emergency vehicle includes a DOCS vehicle as defined in Vehicle and Traffic Law § 101. “Emergency operation” includes transporting prisoners (Vehicle and Traffic Law § 1104 [b]). However, the exemptions from certain rules of the road apply only to an authorized emergency vehicle, unless it is a police vehicle or bicycle, when “audible signals are sounded and, if equipped, at least one red light is displayed and visible.” Here, there was no evidence that any audible signal was sounded by this DOCS transport van. However, there also was no evidence that the van was operated negligently when it stopped short to avoid another vehicle. Instead, Claimant’s evidence at trial focused on the failure of the DOCS transport officers to buckle Claimant’s seatbelt. As Vehicle and Traffic Law § 1104 only exempts an authorized emergency vehicle from rules of the road regulating stopping, standing, parking, maximum speed limits, obedience to traffic control devices, and directions of movement, even if that section applied, it would not apply to relieve Defendant of liability based upon the evidence and allegations of wrongdoing presented at trial.

Nonetheless, the Court finds that based upon Claimant’s reliance on Defendant’s failure to employ seatbelts for Claimant, it is constrained to find that Defendant is not liable based upon the case of Figueroa v State of New York, 19 AD3d 1053. In that case, the Fourth Department affirmed the finding of my colleague, Hon. Nicholas V. Midey, Jr., that evidence of the failure to use seatbelts could not be used (or even admitted) to establish the liability of the Defendant for the alleged failure to safely transport an inmate. Judge Midey concluded, and the Appellate Division agreed, that since Vehicle and Traffic Law § 1229-c (8), prohibits the introduction of evidence of the failure to use a seatbelt, as required by § 1229-c, in “any civil action in a Court of Law in regard to the issue of liability . . . it is inconceivable that evidence of non-use could then be admissible to establish negligence in cases where, as here, seatbelt usage is not mandated” (Figueroa v State of New York, Ct Cl, Midey, J., Claim No. 104206, Motion No. M-66320, dated Dec. 18, 2003, at 5, [UID No. 2003-009-61], affd 19 AD3d 1053). In that case, the inmate suing the State for its failure to safely transport was a passenger in a bus, which is a vehicle specifically exempt from the seatbelt law (Vehicle and Traffic Law § 1229-c [9]). Here, the DOCS van is specifically exempt as an “authorized emergency vehicle” (see Vehicle and Traffic Law § 1229-c [4]). Based upon the doctrine of stare decisis, this Court is required to adhere to the determination of the Fourth Department in affirming Judge Midey’s Decision in Figueroa; thus, the evidence of Defendant’s failure to ensure Claimant was secured by a seatbelt in this van may not be used to establish Defendant’s liability for negligent transportation of Claimant, an inmate.

Moreover, since evidence of noncompliance with the seatbelt law is admissible in mitigation of damages only when the party seeking to introduce such evidence has pleaded noncompliance, to use the words of Judge Midey, it seems “inconceivable” that the issue of the failure to buckle Claimant’s seatbelts could be argued as the basis for liability where the claim makes no allegation of such wrongdoing (see Vehicle and Traffic Law § 1229-c [8]).

As Claimant failed to introduce any other evidence of Defendant’s negligence, the claim must be DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

October 1, 2007
Syracuse, New York

Judge of the Court of Claims

[1].Interestingly, the claim alleged Defendant’s negligent operation of the van in stopping quickly; no allegation is made that Claimant was not belted in compliance with a facility directive. Defendant has not objected to Claimant’s position at trial.

[2]. Claimant makes the argument by supplemental post-trial brief that Defendant has a directive, Directive #4901, Section IVF.17, which requires that inmates wear seatbelts if the vehicle is so equipped. No copy of the directive is in evidence, and thus, it is not properly before the Court.