New York State Court of Claims

New York State Court of Claims

COVINGTON v. THE STATE OF NEW YORK, #2007-029-055, Claim No. 113259


State not liable for broken tooth sustained by inmate, allegedly the result of a rock in his food. No proof of the source of the rock and no proof that negligence attributable to the State was the cause of his injury.

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:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Kevan J. Acton, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 11, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Shawangunk Correctional Facility, seeks damages arising out of a February 10, 2005 incident in which he sustained a broken tooth, allegedly the result of negligence on the part of defendant’s employees at the correctional facility. According to claimant, he injured his tooth while biting into a rock that was part of the food served to him for lunch that day.

Claimant testified that for medical reasons he was served lunch in his cell rather than the mess hall. Lunch on the date in question consisted of two hamburger patties, rolls, and seasoned, roasted potatoes. The potatoes were round, about ½ inch in diameter. Claimant stated he bit into what he thought was a potato, felt pain, and saw that the potato was, in fact, a rock. He claimed a portion of the tooth broke off and he was bleeding. He reported the incident to Correction Officer Stockhofer, gave him the rock, and requested medical treatment, but he was not treated until four days later.

Upon inquiry from defense counsel, claimant advised that he was given plastic utensils along with his meal. He confirmed that he did receive dental treatment for the tooth, which did not die but was in fact repaired. He stated that his understanding was that Officer Stockhofer gave the rock to a different officer, who in turn discarded it.

Officer Stockhofer described the rock that claimant gave him as grayish, about the size of a golf ball. He stated it was not brown, had no seasoning or grease on it, and did not look like a potato. He did not put in an emergency sick call for claimant because he saw no blood and claimant did not appear to be in pain. Instead of sick call, he listed claimant for a dental appointment, which can sometimes take a few days. He asserted he would have put in for emergency sick call had claimant appeared to be in pain.

Wayne Haywood was an inmate working “feed up” duty on the date in question, and it was he who prepared claimant’s tray and served it to him. He testified that the food trays are covered by plastic see-through covers and that he did not remove the cover from claimant’s tray when he served it. Sometime after he served claimant the tray, claimant showed him a rock, a little smaller than a quarter, about the same size as the potatoes, that was “darkish black” and oily. It was not clear how claimant had the opportunity to show Haywood the rock before giving it to Stockhofer. In any event, Haywood did not recall seeing the rock on the tray when he prepared claimant’s lunch.

Claimant filed various grievances and appeals arising out of the subject incident (Exhibit 1). These proceedings uniformly concluded that claimant had not presented sufficient evidence to substantiate his allegation that a rock was part of the meal served to him. It was also noted in the March 16, 2005 decision on claimant’s grievance that the tooth was repaired on February 14, 2005 (id.).

Prior to the commencement of trial, defendant moved to dismiss the claim for lack of jurisdiction. The claim, filed on January 26, 2007, almost two years after the incident, alleges that claimant served a notice of intention to file a claim on defendant on May 3, 2005. Court of Claims Act § 10(3) requires that a claim be served and filed within 90 days after its accrual, unless claimant served a notice of intention within such 90-day period, in which case the claim may be served and filed within two years after accrual. Defendant alleged in its answer that the claim was untimely, depriving the court of jurisdiction. Thus, whether or not the claim is properly before the court is dependent on whether claimant served his notice of intention within the statutory 90-day period.

Defense counsel stated that, although the Attorney General was in fact served with claimant’s notice of intention within 90 days, that document was not properly verified and it was rejected and returned to claimant. Apparently, claimant served a second notice of intention, properly verified, but that document was not served until after the expiration of the 90-day period.

Claimant stated that his original notice of intention was “notarized” and that he thought that meant the same thing as “verified.” The court was not provided with a copy of the notice of intention and has no way of knowing what that document contained, whether it was properly verified or not and whether defendant rejected the document with due diligence, explaining the nature of the defect. That being the case, and given that it is uncontested that claimant did serve a notice of intention within the statutory period, the court must find that defendant failed to establish that the notice of intention was defective and that the claim was therefore late and jurisdictionally defective. The motion is denied.

Defendant also moved to dismiss the claim on the merits, contending that claimant failed to establish a prima facie case of negligence. The court agrees.

Other than claimant’s unsupported testimony there was no proof that the injury to his tooth was caused by a rock concealed in his food. The inmate who prepared the tray and served it to claimant saw no evidence of a rock or foreign object in the food. There was no evidence contradicting the conclusions of the various hearing officers who reviewed claimant’s grievances; i.e. that claimant failed to establish the source of the rock. Additionally, there was no testimony or documentary proof establishing that claimant’s broken tooth was caused by a rock.

It is the claimant’s burden to prove that it is more likely than not that State negligence was the proximate cause of his injury and the proof adduced by claimant was wholly insufficient.

As defendant contends, it is not the insurer of the safety of correctional inmates. Proof that injury occurred in a correctional facility is not a sufficient basis for a finding of liability, in the absence of proof of negligence for which the State is responsible. In the absence of any such proof, the court is constrained to dismiss the claim.

The Clerk of the Court is directed to enter judgment of dismissal in accordance herewith.

January 11, 2008
White Plains, New York

Judge of the Court of Claims