New York State Court of Claims

New York State Court of Claims

KENNETH H. V. THE STATE OF NEW YORK, #2008-016-018, Claim No. 101841


After a court order for protective custody was not implemented in a timely fashion, incarcerated claimant who was then sexually assaulted was awarded $75,000 for past pain and suffering and $20,000 for future pain and suffering.

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):

Alan C. Marin
Claimant’s attorney:
John D. B. Lewis, Esq., and Gary E. Divis, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney Generalby: Ralph Bavaro, AAG
Third-party defendant’s attorney:

Signature date:
May 1, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the decision following the trial on damages of the claim of Kenneth H. The events that led to Mr. H.’s cause of action began with his arrest for grand larceny on September 15, 1998. H. was arraigned in Criminal Court of the City of New York, New York County. Unable to make bail, claimant was remanded to the custody of the City’s Department of Correction, at its Rikers Island facility.

On September 16 and 17 at Rikers, H. was sexually assaulted several times. At his next court appearance, which had been set for September 18, H. instructed his lawyer to ask for protective custody. She did so and the Court ordered same.

However, H. was not placed in protective custody until September 24 or 25, and on September 21, the inmate who had previously assaulted claimant returned and forced him to perform a sexual act. H. limited his claim against the State of New York to the September 21, 1998 assault and liability was found therefor. H. v State of New York, 36 AD3d 511, 828 NYS2d 355 (1st Dept 2007).

The Claim for Damages

On the witness stand, H. described what he felt when his assailant entered his cell on September 21, and claimant was again forced to commit a sexual act: “Betrayed. I couldn’t believe it was happening again. Humiliated, powerless, violated.”

With the inquiry involving a longer time frame, consider this exchange:
Q. Mr. H., did you think about being sexually attacked on September 21, 1998 during your imprisonment . . . when you thought about it how did you feel?

A. I felt very betrayed, afraid, humiliated, powerless and worthless.”
Convicted of grand larceny in the third degree, H. was in prison for over four years, and was paroled on November 22, 2002. At the damages trial, he testified that:
I still have a lot of trust issues. I have a lot of fear. I, own my own gym and I’m afraid to take a shower in it. I don’t like to lock it up at night by myself. I remember taking a shower at home and the cat hit the shower curtain and I balled up in a corner, crying.
H. added that he had trouble sleeping, would “wake up in the middle of the night in sweats . . . I yell out at night.” Then claimant gave as an example of his trust issues that if his partner told H. to meet him and was ten or fifteen minutes late, “I’m thinking he’s not going to show up, what’s he doing? I can’t trust him, where is he? Another let down.”

At trial, on November 27, 2007, claimant called to the stand Dr. Richard G. Dudley, a board-certified psychiatrist, who has served as a commissioner on the National Commission of Safety and Abuse in America’s Prisons. Dr. Dudley met with claimant on four occasions, three times in March and April of 2007 and the fourth time on the day before both men testified here.

Dr. Dudley concluded that H. suffers from posttraumatic stress disorder (PTSD), which he described as arising from a severe stressor. The psychiatrist testified that a life-threatening occurrence is a severe stressor, as is a “significant threat to your physical integrity [and] rape is always given as one of [the] examples of the kinds of traumatic events that could cause the development of PTSD.” Dr. Dudley explained that the central feature of this kind of disorder is “overwhelming anxiety and avoidance behavior.”

The psychiatrist concluded that the subject assault of September 21 caused not only horror and fear, but helplessness, particularly when he believed he had done everything he could to protect himself, referring to the protective custody he had sought on September 18, 1998.

Dr. Dudley testified that H. had indicated to him the first symptom of PTSD, namely that of re-experiencing the traumatic event: “[I]n my, examinations of Mr. H., he talked about having recurrent dreams, that these dreams would wake him up, nightmares would wake him up, sweating, frightened, that he would be talking and thrashing and moving in his sleep.” Dudley added:
Things that remind him of sexual assault will trigger that kind of fear . . . that he felt at the time of the assault . . . [T]here are times when he for no particular reason will think about this assault, while he’s in the midst of doing something else and thoughts will come into his head about the experiences of twenty-one of September and those will be distressing as well.
Dr. Dudley stated that claimant told him he had difficulty falling asleep and a level of irritability that he did not have before what the psychiatrist called “these events . . . in ‘98." Further, H. is “always worried that something else is going to happen, being overly careful,” what Dr. Dudley termed “hyper vigilance” and that claimant has an increased “startle response,” as when someone taps him on the back.


Defendant points to the more severe nature of earlier sexual attacks on H.:

- In 1995, while incarcerated, he was gang raped at Downstate Correctional Facility, which he believes caused him to become HIV positive:
Q. And as a consequence of that rape, you contracted HIV, correct?

A. I believe that’s what I said in the report, yes. I’m not denying that, yes.

Q. And I take it that was a traumatic[1] event?

A. Yes.
According to the records of the Central New York Psychiatric Center, he was also raped in 1995 at the Oneida Correctional Facility (cl exh 5, p. 6).

- Claimant was attacked twice on September 16, 1998, and once the next day. In the first attack on September 16, in his deposition testimony (of January 2001), H. stated that “The inmate had a sharp object and he used that to my neck.” At trial, he was unclear whether any sharp object was used, but stated:
As I said, I recall there being a sharp object. I don’t recall which attack in all the attacks it was used. I know there was more than once.
During the September 16 and 17 assaults, claimant was forced to submit to anal penetration and to perform fellatio:
Q. Question: Was the first incident a sexual assault of some kind?” Answer: Yes, ma’am.” Question: “And what did that involve?” Answer: “I believe the correct term would be fellatio and anal penetration.” Were you asked those questions and did you give those answers.”

A. Yes.

Q. Okay. The next attack on September 16th, several hours later was anal penetration only, correct?

A. I believe so, yes.

Q. The next attack on September 17th was oral and anal penetration, correct?

A. Yes.

The September 21 assault that is the subject of this lawsuit occurred as follows:

Q. . . . [Y]our assailant came into your cell, he asked you to pull down your pants, lean over the sink, is that right?

A. Yes.

Q. And you pleaded with him not to perform anal penetration, right?

A. Yes.

Q. And he complied with your wish right?

A. Yes.

Q. And there was no contact with your anus on that occasion, right?

A. No.

Q. There was not?

A. No.

Q. And instead he forced you to kiss his penis, right?

A. Yes.

Q. And he did not ejaculate?

A. No.
Defendant went on to elicit from H. that he did not sustain any physical injury (“not to my recollection”).
Whether physical penetration occurred or whether a weapon was displayed, is not the point; the subject attack of September 21 was frightening and deeply unsettling. H.’s personal integrity was again invaded, after he was promised protection via court order. Such was not promptly implemented, and claimant naturally felt helpless and vulnerable.

Following the September, 1998 assaults, H. did not seek any psychiatric counseling or therapy during his time in prison until his release on November 22, 2002, although, to this trier of fact, he may have felt uncomfortable doing so in that setting.[2]

Following his release, claimant underwent counseling at Callen Lorde Community Health Center in Manhattan (cl exhs 3 & 4). H. had six sessions with social worker Karliese Greiner from December 20, 2002 to April 18, 2003 (cl exh 3). The opening note from the first session reads as follows:
Clt seeking reentry into society aft. 8 yrs incarceration. He already has gained tremendous awareness and insights into self but wants to examine self more deeply. Doesn’t want to recreate mistakes of the past [first 28 years of his life].
The consult notes relate to H.’s family, job searches and personal relationships. There is no specific reference to any sexual assault. There are references to trust issues with one sentence reading : “Issues with trust, would like to explore new relationships but needs to get himself reestablished in the world and is already actively looking for work [has only been out of jail for 3 weeks]” (id., the 12/20/2002 consult). The next session contains the following note: “Primary presenting problems are issues with trust and relationships” (the 1/31/2003 consult).

Ms. Greiner wrote that Mr. H. was able to express his feelings and “boundaries” clearly and concisely even though he has many stressors in his life, which he listed as work, relationship issues and family issues (3/21/2003).

As of mid-2003, Ms. Greiner was no longer affiliated with Callen Lorde, and H. was seen by social worker Paul Hays from June 3, 2003 through February 24, 2004, some two dozen times (cl exh 4). The July 1, 2003 session notes refer to H.’s lack of trust with a friend, M.

The July 15, 2003 entry mentions his “victim role,” in this context:
Clt [client] and T [therapist] refocus exploration on issues more related to him as opposed to his rel [relationship] with M. Clt would like to examine his victim role saying that he does not want to be one but wonders if he still falls into that and if it affects his rels. Clt would also like to get a better sense of his feelings about having HIV and having a prison record. Do these things make it easier for him to stay with M despite the problems they have been grappling with.
The only direct reference to claimant being assaulted while incarcerated was in the first consult with Hays on June 3, 2003, and H. spoke only of the 1995 attack(s):
Clt reports that he has moved thru his gang rape and HIV dx (1995), having had 8 yrs of time for introspection while incarcerated, does not feel the need to focus on these issues at this time.
Note that the previous sentence in the initial consult with Mr. Hays, referred to “his struggle to trust others, particularly in the context of rels [relationships] . . .”
Claimant, per his post-trial submission, would place what happened to him within the purview of the following concepts:

- Although there were prior sexual attacks, the September 21, 1998 assault aggravated his psychological and emotional state (PJI 2:282).

- Even assuming the September 21 attack, by itself, is properly characterized as of less severity than prior sexual assaults, if by such date, H.’s state was the psychological or emotional equivalent of the proverbial thin-skulled plaintiff, then “defendant must take his plaintiff as he finds him.” (Claimant citing Warren’s Negligence in the New York Courts, §238.01 n. 3, as well as PJI 2:283 on increased susceptibility to injury).

In any event, these principles must be applied to the facts at hand. What was factually established here is that following multiple sexual assaults within a few days (as described above), claimant’s lawyer secured a court order, which was not implemented in a timely manner, leaving H. vulnerable to the September 21 assault, as described above. It was also established that claimant was sexually assaulted in prison in 1995.

As for a long-term impact, Dr. Dudley testified at trial on November 27, 2007 that H. suffered from posttraumatic stress disorder. This conclusion is based on what H. told Dr. Dudley as to what he felt, experienced and so forth (the same or similar ground covered by claimant in his trial testimony).

To this trier of fact, H. lacked credibility. Claimant’s statements at trial and to his doctor about the effects of the September 21, 1998 assault as to his fears and lack of trust etc. are inconsistent with his counseling sessions at Callen Lorde, his ability to own and manage a business and to sustain long-term personal relationships. Claimant was evasive on the witness stand; his demeanor did not inspire confidence in his truthfulness. Additionally with respect to credibility, defendant cited H.’s four felony convictions.[3]

The relevant portion submitted by claimant from the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM-IV-TR) provides that the characteristic symptoms of PTSD are “persistent reexperiencing of the traumatic event . . . persistent avoidance of the stimuli associated with the trauma and numbing of general responsiveness . . . and persistent symptoms of increased arousal . . .” (cl exh 2). Claimant did not prove that any of these symptoms obtained.

The defendant’s board-certified psychiatrist, Dr. Paul Nassar, who conducted an examination of H. on August 1, 2007, further deflated the PTSD argument. Dr. Nassar concluded that PTSD is a symptom of too much memory, which H. does not present; that claimant has been able to enter into reasonably well-functioning relationships; that he has good coping skills; and that his focus during the counseling at the Callen Lorde Center was on building and maintaining relationships, not on the prior sexual assault or assaults. Nassar added that victims of sexual assault are not as comfortable with their bodies, and displaying them, as H. is with his. (Defendant’s exhibit B is Dr. Nassar’s eleven-page report).
The assault on H.’s personal integrity and the resulting helplessness because the State failed to protect him after promising to do so was a serious one. Over the years, there may have been some sequelae, for example, memories affecting sleep, but the significant damage to claimant was suffered when the attack occurred and for some period of time thereafter.

In view of the foregoing, I find that claimant Kenneth H. is entitled to $75,000 for past pain and suffering and $20,000 for future pain and suffering.[4] Accordingly, the Clerk of the Court is directed to enter judgment in the amount of $95,000, with interest to run from January 23, 2007, the date that liability in this matter was first established.[5] To the extent that claimant has paid a filing fee, it may be recovered pursuant to subdivision two of §11-a of the Court of Claims Act.

May 1, 2008
New York, New York

Judge of the Court of Claims

[1]. The transcript volume 1, page 90, line 11 has the word “dramatic,” not “traumatic.” Listening to the tape recording indicates that the latter word was used. Line 4 on the same page of the transcript reads “getting raped”; the tape recording indicates that the phrase was “gang raped.”
[2]. But on that issue, defendant cites the September 25, 1998 consult at St. Barnabas Hospital to the effect that: “He does not at this time experience anxiety, depression, insomnia, nightmares, flashbacks, intrusive thoughts, avoidance/numbing, exaggerated startle or hyper vigilance.” Def exh C.

[3]. See Morales v State of New York, 183 Misc 2d 839, 845-46, 705 NYS2d 176, 180 (2000), affd 282 AD2d 245, 722 NYS2d 860 (1st Dept 2001).
[4]. Claimant was born in January of 1966 and has a life expectancy of 35 years (PJI Vol 1B, App A, Table 2).
[5]. See Lifshits v Variety Poly Bags, 18 AD3d 622, 795 NYS2d 657 (2d Dept 2005), lv dismissed 5 NY3d 847, 805 NYS2d 547 (2005); Niles v Shue Roofing Co., Inc., 244 AD2d 820, 666 NYS2d 282 (3d Dept 1997).