New York State Court of Claims

New York State Court of Claims

BARNES v. THE STATE OF NEW YORK, #2007-038-105, Claim No. 107072


Inmate’s claim for damages allegedly sustained when he bit into glass in his food dismissed. At trial, there was no evidence of a lack of due care by defendant, and there was evidence that there were regular inspections of food preparation areas and that cadre inmates were supervised when working with meals. Claimant did not allege intentional tortious conduct. Finally, claimant’s testimony regarding the incident was not credible.

Case Information

1 1.The caption has been amended to reflect the State of New York as the only defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the State of New York as the only defendant.
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 General of the State of New York
By: Michael Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 3, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate in a State correctional facility, seeks compensation for injuries allegedly sustained when he cut his tongue on a piece of glass that was in his food on or about September 18, 2002 when he was incarcerated in Upstate Correctional Facility (“Upstate CF”). The amended claim alleges that defendant was negligent in failing to adequately maintain and inspect the food trays at Upstate CF. Following decisions on claimant’s motions for summary judgment and to compel the production of certain items (Barnes v State of New York, UID #2004-032-061, Motion Nos. M-68343, M-68512, Hard, J. [Sept. 28, 2004]; Barnes v State of New York, UID # 2006-032-014, Motion No. M-70605, Hard, J. [Mar. 3, 2006]; Barnes v State of New York, Claim No. 107072, Motion No. M-72170, DeBow, J. [Dec. 1, 2006]), the trial of this claim was conducted by videoconference on April 24, 2007, with the parties appearing at Clinton Correctional Facility in Dannemora, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony and that of New York State Department of Correctional Services (“DOCS”) employee Zacharie Trombley and DOCS Lieutenant Theodore Zerniak; defendant offered no witnesses. Claimant offered twenty-two documents into evidence, of which eight were received in evidence.[2] Defendant offered eight documents into evidence, of which seven were received in evidence. The record was held open until defendant produced a videotape of the gallery outside claimant’s cell (Building 10, B-1 gallery, cells 1 through 13) taken on September 18, 2002, between the hours of 11:30 a.m. and 12:30 p.m., or accounted for its inability to produce said videotape. Defendant has submitted an affidavit of Norman Bezio, Deputy Superintendent of Security at Upstate CF that was received by the Court on June 6, 2007, that states that a video image of the B1-gallery outside claimant’s cell on the date in question does not exist.[3] Accordingly, the record was closed on June 6, 2007.
On September 18, 2002, claimant was in his cell (cell 12 in B-1 gallery) at Upstate CF when he received his lunch from Correction Officer (CO) Schule through a “feed up slot”[4] in the bars of the cell. Claimant’s lunch that day was a Kosher meal that was served in an enclosed Styrofoam container. The lunch included a mound of tuna fish – “an ounce or two out of a can” – mayonnaise, lettuce, tomato, bread, fruit, a tea bag, hot water and sugar. Prior to passing claimant his lunch, CO Schule opened up the top flap on the Styrofoam container and visually inspected the lunch and made sure that it had a “spork” – a combination spoon/fork utensil. Ordinarily, the Styrofoam containers that contain Kosher meals are wrapped with cellophane prior to being delivered to inmates; claimant testified that his container was not wrapped up prior to being delivered to him on September 18.

After receiving his lunch, claimant inspected it to ensure that nothing was in his food or water, which he did because, claimant asserts, on prior occasions he had found food particles, hair, lint and dust on the surface of his food and water. After inspecting his meal, claimant made a tuna fish sandwich by using the spork to place “approximately three or four scoops” of tuna fish onto the bread, and then spreading mayonnaise over the tuna fish. According to claimant, there was no need to spread the tuna fish onto the bread with the spork because he evenly apportioned the tuna fish on the bread. Claimant testified that while he was making the sandwich, his attention was switching back and forth between the sandwich and a conversation with his cellmate. Claimant took “one big bite” of the sandwich and “realized something was hard” in the sandwich and he felt a “pinch” on the roof area of his mouth. According to claimant, he spit the bite of tuna fish sandwich out onto the container and noticed blood on the bread and discovered that his tongue was bleeding and that there was green glass in the portion of the sandwich that he had started to eat. Claimant maintained that at no time prior to biting into the tuna fish sandwich did he see any green glass in his meal and he does not know how the glass got into his tuna fish.

Claimant’s cellmate called for help and then-Sergeant Theodore Zerniak[5] responded to claimant’s cell. Claimant informed Sgt. Zerniak that glass was in his food, and gave him the Styrofoam container with his sandwich and the glass. The container with the sandwich and broken glass was later photographed in the same condition as when claimant handed it to Sgt. Zerniak (see Defendant’s Exhibits A through E). Claimant was then taken by Sgt. Zerniak to the infirmary, where claimant’s mouth was examined and x-rays were taken, and he was given warm water and salt with which to gargle. Claimant did not receive any stitches to close the quarter inch cut to his tongue and no antibiotics or other medications were prescribed. Sgt. Zerniak’s limited investigation of the incident consisted of speaking to claimant, claimant’s cellmate and CO Schule about the incident. Sgt. Zerniak did not conduct an investigation into the source of the glass in claimant’s meal and there was no evidence adduced at trial that any such investigation occurred.[6] A search of claimant’s cell uncovered no additional glass or other contraband.

Zacharie Trombley, the head cook at Upstate CF on September 18, 2002, testified that there were no glass items in the food preparation area in September 2002, and, moreover, that no glass like the green glass that ended up in claimant’s meal was utilized in the preparation of meals. According to Trombley, the food preparation area was inspected “almost daily” by DOCS staff and yearly by New York State Department of Health personnel. Further, Trombley testified that the “cadre inmates”[7] who work in the food service area were searched coming and going to work, and were supervised by two correction officers and up to four civilian staff members when they were working. Trombley testified that the tuna fish that is served to inmates is pre-packaged in a can and is placed directly into the Styrofoam container from the can after the juices have been drained from the can. After preparation at the food service area, Kosher meals were put into Styrofoam boxes, which were wrapped with cellophane and then randomly put into insulated “transport boxes” and transported by inmate porters and correction officers from the food service area to the cell blocks, where correction officers would distribute the meals to inmates. Trombley had worked at Upstate CF for approximately one year prior to September 18, 2002, and had never seen – or heard complaints of – glass or other foreign objects in inmates’ food.

Claimant testified that he felt little, if any, pain when he bit into the sandwich, and that he later developed pain in the rear portion of the roof of his mouth that he attributes to the cut on his tongue. Claimant testified that the pain in the roof of his mouth later turned to numbness in March or April 2003, and that the numbness continues to the present. Claimant has experienced no change in his sense of taste as a result of the incident. Claimant presented no medical testimony or evidence as to the causal nexus between the cut on his tongue and the pain and numbness on the roof of his mouth, having testified only that he did not experience pain or numbness on the roof of his mouth prior to the incident.
“Having waived its sovereign immunity, the State is subject to the same rules of liability as apply to private citizens” (Preston v State of New York, 59 NY2d 997, 998 [1983]). It is claimant’s burden to establish his claim by a preponderance of the credible evidence (see Racz v State of New York, UID # 2007-030-004, Claim No. 109495, Scuccimarra, J. [Feb. 13, 2007]; Santiago v State of New York, UID # 2007-044-003, Claim No. 109131, Schaewe, J. [Jan. 10, 2007]). A claimant alleging injury from defendant’s negligence in serving adulterated food must prove lack of due care by direct or circumstantial evidence, and proof that the food preparer exercised due care is a defense, which can be shown, inter alia, by the performance of regular inspections (McMoore v State of New York, UID # 2000-028-0007, Claim No. 90481, Sise, J. [Oct. 2, 2000]; Turchetti v State of New York, UID # 2002-018-141, Claim No. 94813, Fitzpatrick, J. [May 21, 2002]).

After considering all of the testimony and the exhibits received into evidence, and having observed claimant, Trombley and Lt. Zerniak and their demeanor as they testified, and upon consideration of the applicable law, the Court finds that claimant has not demonstrated by a preponderance of the evidence that defendant failed to exercise reasonable care in the preparation or distribution of his meal. Other than claimant’s uncorroborated prior complaints, there was no evidence that there had ever been complaints of glass or other foreign objects being in inmates’ food, and thus, no notice to defendant that its food preparation and inspection procedures were inadequate. Trombley credibly testified that there was no glass utilized in the food service area and that the area was regularly inspected by DOCS personnel. Further, defendant’s agents searched cadre inmates who worked in the kitchen before they entered the food service area, and supervised them while they worked. Inmate porters were supervised while they assisted correction officers in transporting meals to the cell blocks. In sum, there was no evidence that defendant’s food preparation methods or food delivery system negligently permitted glass to be in claimant’s food. Although the claim alleges that CO Schule failed to inspect claimant’s tray on the day in question, claimant’s own testimony at trial indicates that Schule did, in fact, inspect the tray. Further, the claim does not allege – nor does claimant argue – that the glass was intentionally placed in his food by defendant’s employees. Accordingly, the credible proof at trial provides no basis upon which to find defendant liable to claimant.

Moreover, the Court finds that claimant’s testimony regarding the events in his cell was not credible. Claimant’s testimony that he placed only three or four scoops of tuna fish on the bread (instead of making a whole sandwich), did not spread the tuna fish, did not mix mayonnaise into the tuna fish and was distracted by his conversation with his cellmate appeared calculated to persuade the Court that claimant did not see the glass prior to biting into the sandwich. Moreover, the photographs of claimant’s Styrofoam tray (Defendant’s Exhibits A through E) appear to contradict claimant’s version of events. First, it appears from the photographs that the tuna fish was indeed mixed together with the mayonnaise, contrary to claimant’s testimony. Thus, glass that was in the mound of tuna fish would have been discovered when claimant mixed mayonnaise into the tuna fish. Second, claimant testified that there was blood on the bread that he spit out onto the Styrofoam container, yet no blood is visible in the photographs of the container, directly contradicting claimant’s testimony. Accordingly, claimant’s seemingly calculated testimony, coupled with the photographic evidence that contradicts that testimony, leads the Court to conclude that claimant’s testimony was not credible. Accordingly, the Court does not find that the events in claimant’s cell occurred as he testified they did, and thus, claimant failed to prove his claim by a preponderance of the credible evidence.
The Court finds in favor of defendant, and the claim is dismissed. Any motions not previously ruled upon are hereby DENIED. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.

Let judgment be entered accordingly.

August 3, 2007
Albany, New York

Judge of the Court of Claims

[2].At trial, claimant offered into evidence fourteen exhibits, marked claimant’s Exhibits 4 through 13, 15, 17 through 19 for identification, which are memoranda from claimant to the Upstate CF Superintendent alleging that his food had been tampered with by DOCS personnel (Exhibits 4 through 13 and 15) and memoranda from the Upstate CF Superintendent to claimant notifying him that his “Staff Complaint[s]” were being referred to appropriate staff for review (Exhibits 17 through 19). Defendant objected to the introduction of Exhibits 4 through 13 and 15 and Exhibits 17 through 19 on the grounds that the exhibits could not be used to prove an intentional tort of defendant’s agents since the claim alleged negligence. (N.B.: Although defendant objected to Exhibits 4 though 15, no document was marked Exhibit 14 for identification.) At the trial, the Court reserved decision on the introduction of said exhibits into evidence, and now overrules defendant’s objections and receives Exhibits 4 through 13, 15 and 17 through 19 into evidence. The exhibits may be relevant to defendant’s notice that claimant’s food was being tampered with and defendant’s alleged failure to exercise due care with regard to the preparation and delivery of claimant’s food. However, the Court assigns these exhibits little weight because: (1) the Court cannot be certain that Exhibits 4 through 13, and 15 were actually prepared and transmitted to defendant’s agents at or about the time that they were purportedly authored, and (2) Exhibits 17 through 19 are devoid of any information that would describe the nature of claimant’s complaints about DOCS’s personnel to the Upstate CF Superintendent.

[3]. According to the affidavit, the camera system at Upstate CF utilizes digital storage tapes that record two weeks of video/audio at a time. In the event that any video/audio is needed to be saved for future use, the video/audio is copied onto a VHS tape for use, as needed, and stored for five years. In the event that a misbehavior report or an unusual incident report is generated, the video/audio of that incident would be copied onto a VHS tape. Since no misbehavior report or unusual incident report was generated as the result of claimant’s alleged incident, no VHS tape was made and the digital video/audio images for September 18, 2002 were never preserved.
Bezio’s affidavit does not indicate why an unusual incident report was not generated with regard to this incident involving an inmate’s allegation that there was glass in his food. The absence of such a report for what appears on its face to be an “unusual incident” is both puzzling and troubling to the Court but, in the circumstances of this case, does not warrant further discussion.
[4].Unless otherwise noted, any quoted words or phrases are direct quotations from the testimony adduced at trial or from exhibits introduced into evidence at trial.
[5].Sgt. Zerniak has since been promoted to Lieutenant.
[6].By correspondence dated May 2, 2007, claimant submitted to the Court evidence relating to an investigation of the source of the glass. Claimant offered no explanation or justification for why this document was not offered at trial, and fails to demonstrate that the correspondence and its attachments were served upon the Attorney General. This submission is not part of the record of the trial, is not admitted into evidence, and was not considered by the Court in the rendering of its decision.
[7].A “cadre inmate” is an inmate who is cleared to work at the Special Housing Unit (SHU) in such jobs as porter and cook. Cadre inmates are not housed in the SHU.