New York State Court of Claims

New York State Court of Claims

MOBLEY v. THE STATE OF NEW YORK, #2009-032-505, Claim No. 109720


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:
Goldstein & Metzger, LLPBy: Mark J. Metzger, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
September 23, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Correction Officer Kevin Russell works at Bare Hill Correctional Facility near Lake Placid in Upstate New York. On Tuesday, May 11, 2004, he reported for duty at 6:55 A.M. for a tour ending at 3:00 P.M. He worked at B-1 Dormitory, an open barracks, with cubicles for sleeping quarters. There were 40 single cubicles and 20 double bunk cubicles.

Claimant, who was housed at B-1 Dormitory and assigned to a top bunk, testified that while climbing down from his bunk that morning, he slipped and fell, hitting his back on the locker to the right of his bed. An inmate assigned to a top bunk uses the three lockers in his cubicle to reach the top bunk. The lockers and the bed were not secured to the floor. A large locker was located at the foot of the bed, a small one across from the bed and another large locker next to the bed (Exhibit 4). Claimant testified that he requested a bottom bunk permit when he was first received at BHCF and when he was moved to B-1 Dormitory. No instructions were given to inmates on how to climb onto or off the top bunk. No ladders were provided, for security reasons, but there was a chair in the cubicle that an inmate could use if he chose to do so. Claimant testified that he did not use the chair because the Correction Officers did not like the inmates to move the furniture.

Terri Donner, R.N., a nurse at BHCF, testified that Claimant was seen by Dr. Whalen of the Medical Department for hypertension on Friday May 7, 2004. On that day Claimant weighed over 300 lbs (Exhibit 3, p 14), so Dr. Whalen issued a “bottom bunk permit” (Exhibit 2).[1] Upon review of his medical records (Exhibit 3), she testified that claimant never requested a move to a top bunk. Claimant weighed 297 lbs when he entered the prison system in March 2004, thereby not meeting the weight requirement for a bottom bunk. The Population Control Department (Population Control) moves inmates when such permit is issued. Donner testified that if the physician wanted her to call Population Control immediately, he would have written “stat” on the chart and handed it to her. Since hundreds of charts pass across her desk daily, she typically finishes some charts the next day. Claimant’s chart reflects that Population Control was notified on Saturday May 8, 2004 (Exhibit 3, p 14). Claimant testified that he gave Correction Officer Russell a copy of the bottom bunk permit on May 7, 2004. Correction Officer Russell testified that even if Claimant handed him a copy of such permit on May 7, 2004, he would not move an inmate until Population Control gave him the authority and the direction to do so. He also testified that no moves occur on weekends unless there is a fight or a medical emergency.

Claimant testified that Correction Officer Russell saw him fall and came over to his cubicle. This testimony differs from Exhibit B, an Inmate Grievance Form dated two days after the accident, which states “At approximately 6:55 slipped and fell from top bunk 42. I went and informed the 7-3 B-1 C.O. Russell that I needed emergency medical attention.” Claimant’s trial testimony about how he climbed down also differed from his testimony at two depositions.[2] At trial he testified that he placed a foot on the small locker and a foot on the big locker to the right of his bed, slipped and “speared” his back on the big locker (See the “X” on Exhibit 5; Exhibit 3, p 14). However, at his depositions, he testified that he slipped off the big locker and hit the small locker.

According to Correction Officer Russell’s log for Tuesday May 11, 2004 (Exhibit A), Claimant came to Russell’s desk complaining of back pain at 8:00 A.M. If Claimant notified him that he had fallen, Russell would have noted it in the log, and there was no such notation. At 8:16 A.M. the Population Control Department called to have Claimant moved to a lower bunk. The Ambulatory Health Record also notes that the fall, according to Claimant, occurred at 6:55 A.M. that day.
The trial of this claim was bifurcated. The claim sets forth a cause of action that sounds in negligence.[3] It is well settled that the State has a duty to use reasonable care to protect inmates in its correctional facilities from the foreseeable risk of harm (Basso v Miller, 40 NY2d 233 [1976]; Davis v State of New York, Claim No. 106378, June 23, 2004, Midey, J. [UID No. 2004-009-129], citing Flaherty v State of New York, 296 NY 342 (1947); Casella v State of New York, 121 AD2d 495 [2d Dept 1986]. It is equally well settled, however, that the State is not an insurer of inmate safety (Davis, supra, citing Hirsh v State of New York, 8 NY2d 125 [1960]). In a case similar to the instant action, the Second Department held that a delay of three days after the issuance of a lower-bunk permit did not constitute a breach of a duty owed to that Claimant (Levin v State of New York, 32 AD3d 501(2d Dept 2006)].

Here, defendant did not violate its directive for the issuance of a lower-bunk permit if an inmate weighed more than 300 lbs.[4] The issue before the Court is whether the implementation of the permit four days after it was issued, was unreasonable, and thus a breach of duty to Claimant. The permit was issued by a physician on a Friday without direction to the nurse that it must be handled immediately. The nurse notified Population Control on Saturday which did not process bunk moves over the weekend unless it was an emergency. Claimant was moved Tuesday morning, coincidentally after Claimant allegedly fell but before the medical unit was notified. The delay of four days, which was two business days, given the weekend between the issuance and the move, is not an unreasonable delay. Claimant has failed to demonstrate that defendant breached its duty to protect him from a foreseeable risk of harm.

Further, the inconsistencies about how Claimant fell and how the fall was reported to Correction Officer Russell, as stated in his trial testimony, the two depositions, the inmate grievance form, and the Ambulatory Health Records, leads the Court to question whether he fell at all. Claimant’s testimony about requesting a bottom-bunk permit before May 7, 2004 was vague and unsubstantiated by documentation. “The credibility of the witnesses . . . the truthfulness and accuracy of the testimony, whether contradicted or not, and the significance of weaknesses and discrepancies are all issues for the trier of facts” (Herring v Hayes, 135 AD2d 684 [2d Dept], citing Sorokin v Food Fair Stores, 51 AD2d 592, 593 [2d Dept 1976 ]).

Based upon the foregoing, the Court finds that Claimant failed to prove his claim by a preponderance of the credible evidence.

The claim is hereby dismissed. All motions not previously ruled upon are denied.

Let judgment be entered accordingly.

September 23, 2009
Albany, New York

Judge of the Court of Claims

[1].The date on the permit is barely legible. The date was stipulated to by counsel at trial. A bottom bunk permit was issued pursuant to HSPM Directive 1.49, effective September 18, 2000. According to Claimant, another reason for the permit was that he had a reconstructed right knee. However, Exhibit 3, p 2, indicates that he sustained a gunshot wound to that right knee in 1985. There was no record of a reconstructed right knee in Claimant’s medical records admitted at trial.
[2]. Claimant was deposed twice, once for a federal action and once for this action.
[3]. It also includes intentional infliction of emotional distress, products liability and premise liability but the Court deems these claims abandoned as no evidence or legal argument was presented or made to substantiate them.
[4]. The Court notes that Claimant did not challenge the criteria within HSPM Directive 1.49.