New York State Court of Claims

New York State Court of Claims
TIRADO v. STATE OF NEW YORK, # 2010-030-023, Claim No. 113268

Synopsis

After unified trial, State liable in part for excessive force used against inmate claimant proceeding pro se. Damages for minor cuts and bruises in the total amount of $5,000, reduced by claimant's comparable fault to $3,000.

Case information

UID: 2010-030-023
Claimant(s): MIGUEL TIRADO
Claimant short name: TIRADO
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) : The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113268
Motion number(s):
Cross-motion number(s):
Judge: THOMAS H. SCUCCIMARRA
Claimant's attorney: MIGUEL TIRADO, PRO SE
Defendant's attorney: HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:
Signature date: July 19, 2010
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Miguel Tirado alleges in his claim that correction officers at Green Haven Correctional Facility assaulted him in his cell on January 11, 2006, falsely charged him with disciplinary violations resulting in his being sent to the special housing unit, and then allowed his property to be either lost or destroyed. He alleges that Officers Cefaloni, MacIsaac and Serrell were his assailants, and thereafter responsible for the destruction of his property. Pursuant to a prior decision and order, the State was directed to produce these officers for trial testimony without the necessity of a subpoena, and did so.

Mr. Tirado testified largely as set forth in his claim, at times through a Spanish interpreter, and at other times very articulately in English. He said that on January 11, 2006 he was in his cell alone around midday because his cellmate had "gone to chow."(2) He said he turned on his radio and was immediately told by an officer who was standing right outside the door to give him the radio, because it was too loud. Mr. Tirado said: "I said 'I'm not giving you my radio. I just turned it on. How could it be loud?' " Mr. Tirado testified further: "There was another radio playing somewhere that was loud."

The officer then said, "if you do not give me the radio willingly then I will come in and take it by force." Mr. Tirado said that Officer Cefaloni came in the cell, with another officer named MacIsaac. When they came in, they "threw" claimant against the wall between the sink and the bed, and "started throwing punches at him." Then they dragged him out of the cell. He remembered that one of his toes on his left foot got caught between the bars, and that his head hit the gate too; he said he "lost consciousness."

When he woke up, he testified, they had pulled him all the way over to where the stairs were. There were other officers there. He felt feet on his head as they kicked him in the head and then he "was out again." He was handcuffed by the stairs, and ultimately taken to the infirmary. He could "not recall accurately who was there but remembered a sergeant telling one of the officers to leave."

At the infirmary, he said he was "checked by the doctor" right away. He was in pain because of his toe (among other injuries) but was given "no information about the toe when [he] asked the doctor." He recalled spending "several hours" at the infirmary. He said he was "in and out of consciousness." For example, when the "handcuffs were removed, [he] fainted, then regained consciousness." He said he had a "black eye" but could "not remember which one." He suffered "contusions below the eye on [his] cheek. It was swollen." He did not receive any stitches, there was no bleeding, but he had "swelling and his head ached." He said he had a "bruise on [his] shoulder and arm by [his] right elbow." Mr. Tirado testified that he "did not know [he] had a broken toe until after the disciplinary hearing." He claimed that "most of the injuries occurred between the sink and the bed." No pain medication or other medication was prescribed at the infirmary, and he was sent to the special housing unit [SHU] upon his release from the infirmary because of this incident. Thereafter, he was given a sentence of "one year and six months in SHU" after a Tier 3 disciplinary hearing.

Claimant submitted a series of ten black-and-white photocopies of photographs taken of him after the incident, which had been supplied to him by the State. [Exhibit 4]. Counsel for the defendant agreed to provide the original color photographs from which the photocopies had been made for the Court's review post-trial, which are hereby marked as Court's Exhibit 1. The photographs show a substantial bruise across the left eye and cheekbone with swelling, a scratch and bruise on the right shoulder, and a scrape on the right elbow. [Ibid.]. Photographs showing claimant from head to toe do not show any other markings or bruises. [Ibid.].

The property in Claimant's cell was packed up outside of his presence when he was removed to SHU after release from the infirmary. He first saw his property within a few days of being placed in SHU, and immediately saw that "there were things missing and broken." He filed a facility claim, listing property that was either broken or missing valued at a total of $1008.62. [See Exhibit 1]. On appeal, he was offered $40.00 for his loss, but would not accept it. [Ibid.]. Such appeal was decided on March 22, 2006. [Ibid.]. A grievance was also denied. [Ibid.].

In terms of I-64 inventory forms and receipts, copies of same were submitted collectively with the facility claim and grievance documents that had been attached to the claim filed in this Court. [Exhibit 1]. Claimant was provided with a contraband receipt for the radio. [Exhibit 2].

On cross-examination, Mr. Tirado conceded that it appeared that he filed a notice of intention to file a claim before he had exhausted his inmate personal property claims remedy. Indeed, he first served a notice of intention to file a claim by regular mail on January 30, 2006 [Exhibit A] and thereafter served a notice of intention to file a claim by certified mail, return receipt requested on March 20, 2006. [Exhibit B]. According to the appeal section of the facility claim form, the appeal review was signed on "3-22-06." [Exhibit 1]. Therefore, the notice of intention was served on the Attorney General's Office before administrative remedies had been exhausted. Mr. Tirado expressed himself as "very confused" about the paperwork. The claim itself was served on January 11, 2007. [Exhibit C].

Mr. Tirado also conceded that neither the notice of intention nor the claim mentions a fractured toe. He could not say when, specifically, he found out that he had fractured his toe, but then said that it was "after the hearing date" concerning the misbehavior report. He could not say when the hearing took place - including whether it was within one month of the incident. He said: "It was when I was visited by a doctor." Although he was seen by doctors between the day of the incident until he filed his claim on January 29, 2007, he could not explain when he learned that he had fractured his toe, and could only offer that "someone else" prepared the documents and might have omitted the specific injury in the notice of intention and in the claim itself. [See Exhibits A, B and C]. Claimant also agreed that the claim does not specifically say that he was kicked in the head, and punched about the body, however he reiterated that someone else was helping him with the papers, and explained that the indication in the claim that he "was physically abused, assaulted and threaten[ed]" sufficiently describes the nature of the claim. [See Ibid.].

When asked by counsel if Officer Cefaloni's request for the radio was a direct order, Claimant said: "What's a direct order? He didn't order me, he threatened me to get it. The officer said: 'If you don't give me the radio I am going in to get it by force.' "

Mr. Tirado said:

"I was not going to hand over the radio because it was my right not to. [Officer Cefaloni] did not give me a reason why for taking my radio or even asking for my radio."

When asked about the facility policy requiring the use of headphones, Claimant contradicted his direct testimony and said "my radio wasn't on," although he appeared to also be saying that the officer was not in a position to hear the radio or that another radio was playing elsewhere. Mr. Tirado did agree that he turned the radio off (meaning that it was on) when the officer appeared, but seemed convinced that the officer was lurking nearby to ensnare him.

Claimant repeated that it was after his refusal to hand over the radio that the cell door opened, two officers came in, and started the attack. He said there was no second demand for the radio, nor did he move toward the radio, indicating that "it was impossible for me to do that." Claimant denied throwing the radio at the officer, saying "it was impossible for me to do that; not at the angle the radio was at."

Within "three days to a week or so" of his removal to SHU, he observed his property. They brought him out of his cell "in shackles" (although later it appeared that "just [his] wrists" were restrained) to view property displayed "on a table, outside the office for the guards near the showers." Although he admitted he signed an I-64 form at that time, he said it was "by force" with the handcuffs still on his hands. He estimated "half of [his] property was gone and the other half was destroyed." He said his guitar was irreparably dented and had broken strings. His typewriter looked like it had been smashed against the floor although the keys were intact. All of his cassettes and food had been thrown out. Mr. Tirado insisted that he was "forced" to sign documents "under duress." He agreed that he was not being beaten while he observed his property, "at that moment" but said he was "being threatened" that if he did not sign the I-64 forms there would be repercussions, and that he was afraid.

When he was transferred to Upstate Correctional Facility, "it was the same thing. If you don't sign, the property will disappear."

In response to the question as to whether he was checked by a doctor after the incident, Mr. Tirado said that he did not see a doctor the same day (but later conceded he saw a nurse). He confirmed that he did not receive stitches and was not transferred to an outside hospital, saying he had requested transfer to an outside hospital but "they didn't want to."

Claimant agreed that he was seeking reimbursement for the radio, despite the issuance of a contraband receipt. [See Exhibit 2]. He said:

"For me it is like extortion. You can call it whatever you want it's extortion, that and everything else you people do."

Officer A. Cefaloni testified that on January 11, 2006

"I was doing rounds on the third deck of H-Block when I heard a radio playing. It was inmate Tirado's radio. I explained to him he cannot play it without headphones, and I would have to confiscate the radio. He agreed to surrender the radio, so I opened the cell door, at which point he made it seem as if he was getting the radio, and instead threw it at my head. I backed off into the company, and he stepped out of the cell, charging at me, I side stepped him and bear hugged him from behind and we went to the floor, I held on to him until the response team arrived. Officer MacIsaac assisted and held on to his legs while I held his arms. My job was done, the response team then takes over, they handcuffed him. That was it."

Once claimant had agreed to surrender the radio, the officer called to Officer MacIsaac "in the cage" to open the cell. Officer Cefaloni did "not have keys on [him]." No other officers were with him when rather than giving the officer the radio, claimant threw the radio at his head, causing the officer to back up out of the cell and "into the company." He said that when he "grabbed claimant around the waist, [they] were outside the cell. We went to the ground, we were wrestling."

Before the incident, Officer Cefaloni said he had been

"by the officer's cage that opens up the cells which is on a landing. You come up the steps, there's a landing, you go up a few more steps, there's another gate that separates the company. There are less than four feet from the cell to the gate. [Claimant] was in 301 cell, which is the very first cell in the company [of 42 cells]."

After the radio was thrown at him, the witness indicated he had already

"come off the company. By then, [Mr. Tirado] was already coming at me. I don't remember hitting the gate. I don't remember hitting the bars."

Asked by claimant "Why didn't I punch you in the face?" Officer Cefaloni responded "Because I didn't give you a chance." Claimant then said: "I fight very good, and I definitely would not let you grab me."

On cross-examination by the Assistant Attorney General, Officer Cefaloni identified the employee accident/injury report he completed when he went to the infirmary. [Exhibit F]. He wrote "inmate threw radio player at my head striking my left temple." A photograph taken on January 11, 2006 shows swelling, bruising and cuts/scratches on the witness's left temple. [Exhibit G]. Officer Cefaloni also wrote a contemporaneous "to/from" memorandum concerning the incident. [Exhibit H].

Officer Cefaloni explained that it was he who prepared a contraband receipt concerning the radio. [See Exhibit 2]. He said that since "it had been used as a weapon it was therefore contraband, and the procedure was to treat it as contraband."

Officer Cefaloni wrote the inmate misbehavior report, charging claimant with various rule violations, including interference, disturbing the order of the facility, violation of a direct order (to surrender the radio), violent conduct and assault on staff. [Exhibit I]. He recalled testifying at the disciplinary hearing, but was not sure if Mr. Tirado was found guilty of some or all of the charges.

Mr. Tirado asked Officer Cefaloni several more questions, including "why didn't the radio break?", "why didn't the radio split your head?", "doesn't the bruise in the photograph look more like a fist than a radio?", and "why would I throw a radio at your head?, all of which the officer could not really answer meaningfully because they were somewhat unanswerable.

Mr. Tirado said: "there was another radio playing . . . so why would you come to my cell and ask for my radio?" Officer Cefaloni responded: "Because it was playing and I was up on your deck." Mr. Tirado then said: "why didn't you go to someone else's cell?" Officer Cefaloni said: "I probably would have if you didn't throw a radio at my head!"

Correction Officer Jeffrey MacIsaac's testimony was essentially corroborative of Officer Cefaloni's testimony. He said (addressing claimant):

"At the time of the assault on the officer I was in the cage on the third deck. I saw a radio come out and strike an officer in the face - the officer was in the hallway at the time. I saw you charge out onto the company and attack the officer, at which time I secured my cage, secured my lock box, and responded. By the time I got there you were on the ground wrestling with the officer. I helped him restrain you on the ground by holding your legs [the lower legs, by the ankles] . . . At no time did I strike you, kick you, punch you in any way . . . I was not in your cell at any time."

When Mr. Tirado asked "How did I end up out by the stairs? " the officer responded that

"when you struck [Officer Cefaloni] in the face with the radio he stepped back as you charged at him out of the cell, which is about 5 to 10 feet from the stairwell, which is where you guys were wrestling when I got there."

Officer MacIsaac added "you are in the very first cell of the company", and reiterated that when he arrived, Officer Cefaloni had claimant on the ground. Those inmates who had not gone to chow and were in their cells were shaking the cell bars and making noise. Officer MacIsaac secured claimant's ankles and the response team arrived shortly thereafter. They handcuffed the claimant, and removed him from the scene, while this witness went to the clinic.

Officer MacIsaac did not recall having any injuries himself when asked by Mr. Tirado. When asked how many officers were in the response team, he said

"I would estimate maybe ten, it differs everyday, there's not a set amount. If there's a red alert, the arsenal would notify all available officers to respond.

The witness reiterated that Officer Cefaloni was backing up toward the company and the front gallery ("which was where you ended up") as claimant charged him. He backed up "to the gallery. From an open cell to the gallery there are no bars you have to hit." While Officer MacIsaac saw claimant charging the officer, he did not see how the officer got Mr. Tirado to the ground because he was locking his station to come and help. When Officer MacIsaac got there Mr. Tirado and Officer Cefaloni were "in front of the officers cage over by the stairwell on the ground. [Claimant] was wrestling with the officer maybe five feet from the stairwell on the landing."

On cross-examination by the Assistant Attorney General, the witness identified the "to/from" memorandum he had prepared on January 11, 2006. [Exhibit J].

Correction Officer John Serrell also testified about the incident of January 11, 2006 saying that he was at his post at the time of the incident "down the hallway." He was part of the response team. When he arrived at the scene, he saw an inmate on the ground and two officers restraining him as he came up the stairs. Officer Serrell came over, "put the mechanical restraints on him" (handcuffs), they "stood the inmate up and put him on the wall." Officer Serrell did not remember the other officers on the response team, and could not say how many officers were there. "Whether it was five or ten or fifteen - it was four and one-half years ago - I don't know" he said. He was relieved by the sergeant thereafter.

Describing the area further, he said:

"There are two galleries and in the middle there's a cage. It's a steel door you lock behind you and inside it has the lock boxes for the two companies that go parallel down the hallways. So when you go up the stairs, you'll have a company that goes straight down, then the cage is right there separating the two companies, then when you walk over the other gallery going down. The cage is about a ten yard steel wraparound, it covers such a large area of every deck that when you say you are in front of the cage you could be right there in front of everything."

The Sergeant relieved Officer Serrell, he said, because

"that is the policy when you have been involved in a use of force. Once the inmate is under control, you are no longer involved."

On cross-examination by the Assistant Attorney General, Officer Serrell identified the contemporaneously written "to/from" memorandum as his. [Exhibit K].

No other witnesses testified, and no other relevant evidence was submitted.

As an initial matter, the defendant's motion to dismiss that portion of the claim involving property loss and damages, based upon the 6th affirmative defense raised in the answer, is hereby granted.

The claim herein was served on the Office of the Attorney General on January 11, 2007. [Exhibit C]. A notice of intention to file a claim was served by regular mail on January 30, 2006. [Exhibit A]. A second notice of intention to file a claim was served on March 20, 2006 by certified mail return receipt requested. [Exhibit B]. According to the documentation concerning claimant's personal property loss or damages cause of action, the administrative appeal of his facility claim was approved on March 22, 2006 for the amount of $40.00. [Exhibit 1]. Thus any claim served and filed in this Court concerning such property loss and damages should have been served within 120 days of March 22, 2006, or by July 20, 2006. See Court of Claims Act 10(9).

A notice of intention does not operate to extend the time within which to serve and file the actual claim when recovery for lost or damaged personal property is sought by an inmate. Indeed,

"Court of Claims Act 10 (9) expressly requires an inmate seeking to recover damages for lost personal property to file a claim within 120 days following the exhaustion of available administrative remedies . . . (citation omitted). Significantly, unlike Court of Claims Act 10 (2), (3), (3-a), (3-b) and (4), there is no provision in Court of Claims Act 10 (9) which allows for service of a notice of intention to file a claim as a means of extending the time that a claim may be served or filed." Pristell v State of New York, 40 AD3d 1198, 1199 (3d Dept 2007).

With regard to the other cause of action asserted in the claim in the nature of assault, however, the timely and properly served notice of intention to file a claim would extend the period within which claimant could serve his claim, at least to within one year of its accrual (because an intentional tort is alleged). See Court of Claims Act 10 (3-b). Assuming an accrual date of January 11, 2006, the claim would have to be served by January 11, 2007. The claim herein was served on January 11, 2007, according to the stamped copy of the claim submitted by defendant, as well as paragraph 10 of the answer, and is therefore timely. [See Exhibit C].

Use of physical force against an inmate is governed by statute, regulation, and the attendant case law. The statute provides in pertinent part "[w]hen any inmate . . . shall offer violence to any person, . . . 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, [and] to secure the persons of the offenders . . . " Correction Law 137(5). As set forth at 7 NYCRR 251-1.2 (a), an officer must use "[t]he greatest caution and conservative judgment . . . in determining . . .whether physical force is necessary; and . . . the degree of such force that is necessary." Once an officer determines that physical force must be used, "only such degree of force as is reasonably required shall be used." 7 NYCRR 251-1.2(b); see Lewis v State of New York, 223 AD2d 800, 801 (3d Dept 1996).(3) The state may be liable for the use of excessive force by its employee - constituting a battery - under the concept of respondeat superior. See Jones v State of New York, 33 NY2d 275, 279 (1973).To assess whether force was necessary, or whether the particular degree of force used was reasonable, Courts look at what circumstances confronted the officers at the time. The credibility of those who testify before the court is a critical factor in these assessments. See Kosinski v State of New York, UID

# 2000-028-0012, Claim No 97581 (Sise, J., November 30, 2000 ); see also Medina v State of New York, UID # 2007-028-010, Claim No. 106664 (Sise, P.J., March 2, 2007).

A cause of action for assault is established upon " 'proof of physical conduct placing the [claimant] in imminent apprehension of harmful contact'. . . (citations omitted)." See Fugazy v Corbetta, 34 AD3d 728 (2d Dept 2006). To establish a cause of action for battery, a claimant must prove that there was intentional, nonconsensual and offensive bodily contact. [Ibid.]. Committed in the scope of employment by a correction officer, a battery may render the State vicariously liable for the acts of its agent as noted above.

Resolving issues of credibility is the province of this court as the trier of fact. LeGrand v State of New York, 195 AD2d 784 (3d Dept 1993), lv denied 82 NY2d 663 (1993). An important part of that role is observing the behavior and demeanor of witnesses as they testify, and assessing the internal consistency of their accounts. " '[T]he fact-finder is not required to credit a particular fact testified to by one or even six witnesses,' but instead should assess the likelihood of a fact being true 'by the totality of circumstances surrounding the occurrence as well as by the ordinary laws that govern human conduct' (People v Collier, 85 Misc 2d 529, 553 [NY Sup 1975])." Medina v State of New York, supra.

Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has established an adequate basis for the State's liability, at least in part, by a preponderance of the credible evidence. On the whole, portions of claimant's account of events was credible even if he exaggerated the length and duration of the fisticuffs, and the extent of the injuries he sustained. By the same token, portions of the testimony of the officers were credible as well, at least in terms of what was actually witnessed.

Most significantly, however, in comparing the testimony of Mr. Tirado and Officer Cefaloni - the only witnesses to the initial part of the confrontation - only portions of the testimony of each is credited. This is in part because what is apparent from the photographs submitted of Mr. Tirado [Exhibit 4; Court's Exhibit 1], and of Officer Cefaloni [Exhibit G]. Officer Cefaloni was struck with something on the right temple, causing scratching and swelling and a bruise, and Mr. Tirado's bruising around his left eye and cheek - a classic black eye - clearly resulted from a punch to the eye. It is noted, too, that these photographs do not at all suggest the wholesale pummeling Mr. Tirado described. What they suggest is that Mr. Tirado threw the radio at Officer Cefaloni's left temple, and that under that provocation, Officer Cefaloni punched claimant in the left eye, before thereafter applying force in the form of a bear hug to restrain claimant's arms and to wrestle claimant to the ground in a take-down maneuver.

The testimony of Officer MacIsaac and Officer Serrell, is credible in terms of what they actually witnessed, as well as their roles as the subsequent responders to the scene. Officer MacIsaac saw the radio striking Officer Cefaloni, but lost sight for a brief period while he locked up the cage and came to assist Officer Cefaloni. As he noted, by the time he arrived, Officer Cefaloni had succeeded in wrestling claimant to the ground, and Officer MacIsaac then assisted in such restraint by holding on to claimant's legs. His and Officer Serrell's testimony is relevant only as to whether more force than was necessary was applied after claimant was on the ground in a body hold. The Court credits their account that once the claimant was restrained on the ground as described, all that remained was to handcuff him and escort him to the infirmary. No more force than was necessary to restrain him was applied at that point.

The issue therefore is whether the lack of self-restraint shown by Officer Cefaloni initially under provocation is sufficiently egregious to render the State of New York liable for a battery. In determining this issue, the Court must consider what was facing the officer at the time from the perspective of a reasonable officer on the scene, rather than with the benefit of hindsight. What kind of an immediate threat to the safety of the officer was presented? Was the claimant actively resisting restraint?

In this regard, the Court's observations of the claimant and of the other witnesses are particularly telling. Mr. Tirado presented as a reasonably intelligent, combative, and very angry man. Even in the proceedings before this Court, he was easily agitated to truculence, revealing by his testimony and on his examination of the witnesses that he did indeed have his radio playing without headphones in contravention of regulations, that he did refuse a direct order, and that he did at least punch Officer Cefaloni (by the question, "doesn't that look more like a fist than a radio?"), during what he perceived was an unfair confiscation of his property. This is, however, a prison setting. In order to maintain order in this volatile setting, outnumbered correction officers cannot be required to be answerable to inmates for every judgment call made, even something as innocuous as demanding that a radio be surrendered when it is being played without headphones. This is not a setting where the players are equal.

But it is a setting where even with provocation, officers must be better able to exercise self-restraint. A punch to someone's eye, even when provoked, is not reasonable force under the circumstances. It is not a defensive move, it is an aggressive one and renders the State liable for such battery as it was committed in the course of employment. " '[T]he primary mission of a correction officer [is] to be responsible for the care custody and control of inmates . . .' " Matter of Pierson v Kralik , 279 AD2d 630, 631 (2d Dept 2001). The behavior of this officer attests to "conduct . . . fundamentally at variance with the conduct expected of a peace officer." [Ibid.].

Additionally, however, claimant clearly contributed to his injuries by his own belligerent behavior.

Accordingly, the Court finds in apportioning responsibility for this battery, that the State of New York was 60% responsible, and the Claimant was 40% responsible.

Damages for battery, if proven, may include compensation for the injury, pain and suffering and any special damages incurred. DeLaCruz v City of New York, 163 AD2d 163 (1st Dept 1990). Claimant's medical expenses are paid for by the State of New York by virtue of his incarceration in the custody of DOCS. Punitive damages are not recoverable against the State or its political subdivisions. Sharapata v Town of Islip, 56 NY2d 332, 339 (1982). Nor can a claimant recover for emotional distress against the State of New York. Finally, claimant must connect the battery to any continuing injury with expert testimony, particularly when other injuries may be part of the factual scenario. See Panzarino v Carella, 247 AD2d 521, 523 (2d Dept 1998); Ortiz v Mendolia, 116 AD2d 707 (2d Dept 1986). "Claimant may recover only for such increased pain and suffering caused by defendant's acts . . . (citations omitted)." Mihileas v State of New York, 266 AD2d 866 (4th Dept 1999).

Claimant did not establish the extent or permanency of injuries proximately caused by the battery committed by the State's agent on January 11, 2006. The records submitted confirm that he suffered some minor cuts and bruises.

The Court finds claimant has been damaged in the amount of $5,000.00 for the conduct of the State's agent in intentionally touching him offensively, causing temporary pain and suffering and nonpermanent physical injuries. Accordingly, reducing said sum by 40% for claimant's comparable fault, claimant is entitled to recover the sum of $3,000.00, together with any filing fee actually paid, pursuant to Court of Claims Act 11-a(2).

Let judgment be entered accordingly.

July 19, 2010

White Plains, New York

THOMAS H. SCUCCIMARRA

Judge of the Court of Claims


2. All quotations are to trial notes or audio recordings unless otherwise indicated.

3. "[R]eviewing the record as a whole, we find no basis to disturb the Court of Claims' conclusion that [claimant] was sufficiently under control at the time of the incident and that the action taken by [the state employee] in executing the take-down maneuver was therefore not necessary and, accordingly, constituted the negligent application of excessive force."