New York State Court of Claims

New York State Court of Claims

TAFARI v. THE STATE OF NEW YORK, #2007-031-507, Claim No. 110182


Claimant failed to prove that offensive noise which startled him was actionable. Claim dismissed.

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:
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 28, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Injah E. Tafari (“Claimant”) filed claim number 110182 on December 6, 2004 alleging 1) he was the victim of an assault and battery and 2) Defendant violated Correction Law §§ 45(3) and 137(5) while Claimant was incarcerated at Auburn Correctional Facility (“Auburn”). I conducted a trial on this matter at Auburn on May 11, 2007.

Injah E. Tafari (“Claimant”) filed claim number 110182 on December 6, 2004 alleging 1) he was the victim of an assault and battery and 2) Defendant violated Correction Law §§ 45(3) and 137(5) while Claimant was incarcerated at Auburn Correctional Facility (“Auburn”). I conducted a trial on this matter at Auburn on May 11, 2007.

Claimant testified that on November 25, 2004, he was in his cell at the Special Housing Unit (“SHU”) sitting on the toilet, using it as a stool. As he was sitting, an officer banged on the cell wall behind the toilet with enough force to scare Claimant, causing Claimant to fall off the toilet seat in such a manner that he hit his head on the sink and broke a tooth. Claimant surmises that someone used a crowbar to create the noise. Exhibit A is the November 26, 2004 note from Claimant’s Ambulatory Health Record (“AHR”) confirming Claimant suffered a cracked tooth and a headache. He was given emergency dental treatment on November 30, 2004 (Exhibit A). Claimant admitted on cross-examination that no physical contact was made with his person, only that someone intentionally banged on the wall of his cell.

At the close of Claimant’s case, the State moved to dismiss Claimant’s case for failure to state a cause of action. I must grant the State’s motion.


“An assault is the intentional placing of another person in apprehension of imminent harmful or offensive contact” (PJI 3:2). Claimant could not be the victim of an assault because no person was in direct physical presence of Claimant, a necessary prerequisite to have a victim fear harmful or offensive contact. Claimant failed to prove a prima facie case of assault.


“A person who intentionally touches another person, without that person’s consent, and causes an offensive bodily contact commits a battery . . .” (PJI 3:3). Claimant has not alleged nor proven that he was intentionally touched by anyone, therefore, this portion of his claim must be dismissed.

Use of Force

Correction officers are charged with the unenviable task of maintaining order and discipline in correctional facilities under stressful circumstances (Arteaga v State of New York, 72 NY2d 212). It is well-settled that correction officers are entitled to use physical force in order to achieve this goal, but “[o]nly such degree of force as is reasonably required shall be used” (7 NYCRR 251-1.2[b]). The limited circumstances in which the use of force is tolerated by correction officers are set forth as follows:
“An employee shall not lay hands on or strike an inmate unless the employee reasonably believes that the physical force to be used is reasonably necessary: for self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape” (7 NYCRR 251-1.2[d]).
In situations involving inmate allegations of excessive force by a correction officer, such as here, the credibility of the respective witnesses is often the dispositive factor (Davis v State of New York, 203 AD2d 234). To determine, in a given instance, whether force was used and, if so, whether the force used was excessive or unreasonable, a Court must examine the specific circumstances confronting the officers or guards (see e.g. Lewis v State of New York, 223 AD2d 800; Quillen v State of New York, 191 AD2d 31; Brown v State of New York, 24 Misc 2d 358). Inasmuch as no officer laid hand on or struck Claimant, Defendant may not be found liable for an unreasonable use of force.

Correction Law § 137(5)
“No inmate in the care or custody of the department shall be subjected to degrading treatment, and no officer or other employee of the department shall inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection. When any inmate, or group of inmates, shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt or escape.”
Claimant alleges he was subjected to degrading treatment, that is, the presence of Defendant’s agent(s) behind his cell pounding on his cell wall. Claimant provided no evidence on his direct case regarding how it was even physically possible to have a person present outside his cell wall. The State produced Correction Officer Clark who testified on cross-examination that there was a catwalk behind the SHU cells and it would be possible for a person to be on the catwalk - Officer Clark had escorted contractors to the catwalk to perform work. He also testified he never saw a crowbar in SHU and he himself never pounded on Claimant’s cell. While such a noise might be categorized as annoying, it does not constitute degrading behavior. Therefore, this claim must be dismissed.

Correction Law 45(3)

The State Commission of Correction shall:
“Visit, inspect and appraise the management of correctional facilities with specific attention to matters such as safety, security, health of inmates, sanitary conditions, rehabilitative programs, disturbance and fire prevention and control preparedness, and adherence to laws and regulations governing the rights of inmates.”
Claimant stated Defendant failed to protect him from being assaulted by an officer, therefore, Defendant violated the duties and protections afforded by Correction Law § 45(3). Claimant failed to prove that an assault and/or battery occurred, thus, this portion of his claim must also be dismissed.

Accordingly, Claim No. 110182 is hereby DISMISSED in its entirety.

Any and all other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.


September 28, 2007
Rochester, New York

Judge of the Court of Claims