New York State Court of Claims

New York State Court of Claims

MACDERMOTT v. THE STATE OF NEW YORK, #2009-041-509, Claim No. 113541


Synopsis

Claim alleging battery by state trooper is dismissed after trial where credible testimony was insufficient to support claim by a preponderance of the evidence.

Case Information

UID:
2009-041-509
Claimant(s):
THOMAS J. MACDERMOTT
Claimant short name:
MACDERMOTT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113541
Motion number(s):

Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
MAINETTI, MAINETTI & O’CONNOR, P.C.By: Joseph O’Connor, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Belinda A. Wagner, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 30, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The events which gave rise to this claim, and which occurred in the early morning hours of February 11, 2007, were described in vastly different ways. At approximately 6:00 a.m., Nicholas MacDermott, adult son of the claimant, Thomas MacDermott, having been arrested by the New York State Police for driving while ability impaired and brought to the Highland State Police barracks, called his father to inform him of the situation and to have his father come get him. These facts are not in dispute.


At approximately 7:00 a.m., the arresting officer, Trooper Christopher Curley, and Nicholas MacDermott had an unpleasant exchange over Nicholas’s refusal to immediately review and initial a “DWI Bill of Particulars,” resulting in the trooper calling Nicholas “an asshole.” These facts are not in dispute.

Immediately or shortly thereafter (depending on the testimony of various witnesses), Thomas MacDermott (claimant) arrived, was informed by his son of the exchange and asked to speak with Trooper Curley. Trooper Curley, in a secure, non-public area of the barracks, came into the public lobby area where father and son were, and then escorted the claimant into the secure area, into an interview room, to discuss the events of the morning. These facts, too, are not in dispute.

Beginning at the time of claimant’s arrival at the Highland State Police barracks, the witnesses’ accounts of what subsequently transpired, on both germane and non-germane events, starkly and irreconcilably differ.

Initially, the Court must frankly note that it received neither a fully accurate or credible account of the events of February 11, 2007 from any of the six witnesses, two of whom testified for the claimant, four of whom testified for the defendant.

On both the critical events forming the basis of the claim and on mundane, irrelevant matters, there were substantial, irresolvable discrepancies in the witnesses’ accounts of the morning, as well as inconsistent testimony between various witnesses, and internally inconsistent testimony by individual witnesses.

Upon arriving and initially speaking to Trooper Curley in the lobby area, claimant and Trooper Curley subsequently spent 10-15 minutes speaking privately in an interview room. Each man described the discussion quite differently than the other, even as to issues not dispositive to the claim. For example, claimant testified that the two men discussed the trooper having called the son an asshole, that the trooper asked the claimant to sign or initial his son’s DWI Bill of Particulars and that when claimant stated that motorists are often stopped on a pretextual basis to initiate drunk driving arrests, Trooper Curley stood and “glowered” at him, unspeaking, for five to ten minutes, not responding to claimant. Trooper Curley, on the other hand, testified that the two men never discussed the trooper calling the son an asshole, that he never asked the claimant to sign or initial the son’s DWI Bill of Particulars, and that when the claimant opined about pretextual police stops of motorists, the trooper ended the meeting and they immediately departed the interview room.

The Court discredits both men’s accounts. It logically follows (and testimony was provided) that the very reason the claimant asked to meet with Trooper Curley was his unhappiness at being informed that the trooper had called his son an asshole. The Court finds it unlikely the matter was not discussed privately between the two men. Having said that, the Court finds it equally unlikely the father was asked to sign or initial his adult son’s DWI Bill of Particulars and that Trooper Curley stood mute, glowering at claimant for between five and ten minutes.

At the conclusion of the private meeting, the two men left the interview room and proceeded down a hallway to a dispatch area where two defendant employees were working: communications specialist Thelma D’Alessandro and Trooper Maria Randazzo. The two men again disagreed about who preceded whom down the hallway to the dispatch area, which is immediately next to a door leading out into the public lobby area (where claimant’s son was awaiting him).

The next series of events form the basis of the claim which, according to the claimant’s trial testimony, alleges that claimant suffered personal injuries as a result of a battery perpetrated by Trooper Curley:
“A [claimant], to recover damages for battery, must prove that there was bodily contact, that the contact was offensive . . . and that defendant intended to make the contact” (Goff v Clarke, 302 AD2d 725, 726 [3d Dept 2003]).
Although the filed claim alleged negligence, no proof suggesting or supporting a theory that defendant was negligent was adduced at trial.

Claimant testified to beginning to depress the door handle (of the door leading into the public lobby) with his left hand and that as he began to do so, Trooper Curley, from behind him, placing both of his hands on claimant’s back, on the shoulder blades, forcefully and violently pushed claimant, propelling him first into the door and then into the arms of his son in the lobby, who caught him and prevented him from falling to the floor, all of which caused him great pain.

Trooper Curley’s account differs dramatically. Trooper Curley testified to preceding claimant to the door, and while holding arrest paperwork in his left hand, that he opened the door with his right hand, pushing it out into the lobby, and held the door open with his right arm as the claimant passed in front of him, untouched, and that the claimant then proceeded without incident into the lobby.

Trooper Randazzo, working in the dispatch area immediately adjacent to the lobby door, testified in a manner confirming Trooper Curley’s account, specifically stating that Trooper Curley did not touch the claimant. On several points leading to these events, Trooper Randazzo could not recall many matters and, on at least one point, contradicted Trooper Curley. On this one point however she, apparently, had good recall.

The claimant’s son, awaiting his father’s return in the lobby, testified to hearing the door handle jiggle, and jumping from a kneeling position on a nearby couch in the lobby to catch his father as he was being forcefully propelled through the doorway. He did not see physical contact between his father and Trooper Curley, instead concluding from his father’s propulsion into the lobby that he had been pushed. The son’s testimony, in order to catch his falling father, falling through the lobby doorframe, would have required him to instantly move several feet to his left, from a kneeling position, at the mere sound of a door handle jiggling, with no expectation that it would be immediately followed by his father’s body being propelled into the lobby. The son’s account is not persuasive.

On several non-dispositive matters, the witnesses contradicted other witnesses or themselves. For example, Trooper Curley reported that after he called the son an asshole, Nicholas MacDermott followed him from the lobby into the secure dispatch area, flailing his arms, and yelling that Trooper Curley had called him an asshole, and further, that Trooper Randazzo was present when this happened. No other witness reported seeing Nicholas MacDermott in the secure dispatch area and Trooper Randazzo specifically denied observing Nicholas make such a scene.

Similarly, communications specialist D’Alessandro testified to first seeing the claimant that day walking in a secure area with Sergeant McKenna (Trooper Curley’s supervisor), with whom he was lodging a complaint that he had been pushed by Trooper Curley. However, a statement she gave twelve days after the events of the day (Exhibit 6) indicates that she first observed the claimant that day in the public lobby area, speaking with his son, at a time approximately twenty minutes before claimant would have been speaking with Sergeant McKenna. Additionally, Trooper Curley and Sergeant McKenna contradicted each other about whether they discussed the claimant’s allegations of Trooper Curley having pushed him, shortly after the claimed incident. Trooper Curley said he did not discuss the events of the day with his supervisor that morning, but Sergeant McKenna testified that the two had discussed the claimed incident shortly after the claimant had lodged his complaint with Sergeant McKenna.

Finally, the Court observed the claimant’s demeanor as he testified and did not find him to be unerringly accurate or credible. The Court found the claimant’s testimony to be consistently and substantially embellished, tending to be overly dramatic, declaring at points, “I’ll never forget the feeling of his hands on my back” and “I still feel his hands on my back,” and employing hyperbole in describing the events of that morning.

Claimant would have the Court believe that in the immediate presence of one, possibly two, coworker(s), neither of whom corroborated claimant’s account of events, Trooper Curley, by means of a violent two-handed push, shoved him through the doorframe of a door leading to a public waiting room, occupied by at least the claimant’s son and possibly others. Simply put, the Court does not credit such an account.

The Court, as the finder of fact, must weigh the credibility and probative value of the witnesses and exhibits and determine whether each particular element of the claim has been proven by a preponderance of the evidence (see Gendelman v Presti, 220 AD2d 820, 821 [3d Dept 1995]; Jarrett v Madifari, 67 AD2d 396 [1st Dept 1979]; Meehan v State of New York, 95 Misc 2d 678 [Ct Cl 1978]).

The Court found none of the witnesses’ accounts to be entirely accurate or credible. Be that as it may, ultimately it is the burden of the claimant to prove his case by a preponderance of the credible evidence. This, he has failed to do, and this Court will not speculate, cannot speculate, as to how the events of February 11, 2007 unfolded and concluded, particularly given the lack of any evidence to support any scenario other than the two starkly different descriptions by the respective parties of the events of the morning of February 11, 2007. Accordingly, the claim is dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.


September 30, 2009
Albany, New York
HON. FRANK P. MILANO
Judge of the Court of Claims