Damages awarded to claimant and her minor daughter for emotional harm caused by intentional egregious conduct of State's agents in effecting a warrantless and nonconsensual entry into claimant's home.
|Claimant(s):||SHARON PERRINGTON and SHARON PERRINGTON on behalf of JOSHUA PERRINGTON, a Minor, and SHARON PERRINGTON on behalf of BROOK ROBINSON, a Minor|
|Claimant short name:||PERRINGTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||SHARON PERRINGTON, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, ATTORNEY GENERAL
OF THE STATE OF NEW YORK
BY: JOHN HUNTER, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||November 18, 2010|
|See also (multicaptioned case)|
In a Decision rendered after the liability phase of this trial, the Court found the State of New York 100% liable "for any injuries sustained by the claimants, arising from the defendant's nonconsensual entry into and search of . . . [claimant Sharon Perrington's] apartment, and from their detention in the apartment while the officers were there." [Perrington v State of New York, Claim No. 112187, unreported, (Nadel, J., August 18, 2009). This decision relates only to damages.(1)
The claim arises from the entry into Ms. Perrington's apartment at 7:00 a.m. on January 9, 2006 by officers engaged in a search for her nephew, Kevin Wallace. Ms. Perrington awoke to an armed man in her bedroom at the foot of her bed, repeating "get the f*** up," who escorted her at gun point into the living room, where her 12-year-old daughter Brook, and her now 21-year-old nephew Joshua, were already sitting on the sofa, with guns pointed at them.
On January 9, 2006, Sharon Perrington was a caseworker for the New York City Administration for Children's Services, and had been for 18 years. She had the personal responsibility of caring for the four children who resided with her. When she testified at the liability phase of this trial she was employed as the director of a senior citizen's center in the Bronx.
At the liability phase of the trial, Brook Robinson, 12 years old at the time of the incident, testified that on the morning of January 9, 2006, loud banging noises awakened her. [T-6].(2) She heard "people screaming", and then realized there was a man standing at the end of her bed pointing a gun at her, and "screaming" at her, using profanity to tell her to get up. [T-6]. When she went into the living room, several other men were there. They did not identify themselves. They started asking her questions about her cousin Kevin Wallace, and showed her photographs. They then roused her cousin Joshua, and, "since he didn't get up, they picked him up and they brought him into the hallway" where they "put him down." [T-10-11]. Joshua then walked into the living room, and was asking Brook what was going on. The men had still not identified themselves, so Brook did not know what to tell him.
Sharon Perrington testified that although her older son and daughter left the household earlier that morning, the rest of them had not yet arisen for school and work, when the unidentified men burst into her home, brandishing guns, in search of Kevin, who they claimed was among "America's most wanted." When she was surprised awake, and told to get up, she responded with "who are you" but was not given a response. Accordingly, thinking that this was a robbery or some other criminal event going on, she rolled out of bed thinking that she could get to the closet and, if they were going to kill her, at least the kids would not see. Then two men demanded she get up and put her hands on top of her head, and refused her request to put some clothes on, since she was wearing only a t-shirt and underwear for sleeping.
In some considerable distress even four years later as she testified before this Court, Ms. Perrington said they used "derogatory language" they "put guns to our heads". She did not know if she was "being robbed", or "exactly what was going on" since these men did not identify themselves. She said she was marched into her living room, "inappropriately dressed" where her children had already been herded from their beds by these men. The children were seated on the couch, surrounded by a "bunch of men" in plainclothes with guns. One officer was talking to Brook about having "buzzed them in" on the intercom, while Brook was trying to explain that the intercom was broken and the phone was not connected, so that was not possible. Ms. Perrington heard the officer call her daughter "a little bitch or something" for "lying." Another officer grabbed Ms. Perrington's cell phone from the top of the television, looking for an entry for Kevin's telephone number.
The only identification given was "at the end," when Officer Fernandez gave her a ripped piece of paper containing a handwritten notation with "po Fernandez" on it, saying "you can call this number." [See Exhibit 6]. Thinking that this was a telephone number for someone to whom she could report this matter, after calling it Ms. Perrington found out that it was Officer Fernandez' cell phone, and not the number of some supervising authority. The whole incident took "30 plus minutes."
She said today she still does not know how they got in the apartment in the first place. "They said the door was ajar." Although her older son and daughter had left earlier to get to school, she surmised that perhaps it was that the "slam lock" was open, but she "honestly does not know how they got into the house," which troubles her still.
That morning, in an effort to try and put it behind them and stick to a routine, Ms. Perrington sent her daughter Brook to school. The school contacted Ms. Perrington saying something was wrong, and Brook remained out of school for several days. Because Brook was scared to be home, Ms. Perrington let her stay at a friend's house.
Brook testified during the liability phase that although she went to school that morning, there was "a certain look on [her] face or something", because "everybody just kept asking [her] what was wrong." [T-13]. She responded that nothing was wrong, even when the dean asked her the same question. She felt very confused and could not "think straight." [Ibid.]. She drew pictures and wrote poems concerning the incident, to try to express her emotions. [See T-13-21; see e.g. Exhibits 1, 2, 3, 4, 5]. Ms. Perrington testified that while she herself did not seek medical attention after this incident, her daughter Brook did see a therapist for some time, until Brook decided that she "no longer wanted to discuss it, because she did not want to keep reliving this thing over and over again."
Ms. Perrington said that for herself, she "just has to live with this for the rest of my life" and that "they can't seem to explain to me why this was done." She knew it was "not procedure" for them to have handled matters the way they did, but expressed frustration at her inability to get an answer as to why it was felt necessary to refuse her the opportunity to put on more clothing than the t-shirt and underwear she had been sleeping in, since they already had searched the apartment, terrified her children, and found nothing. Even when she finally was "allowed" to go "wash [her] face and brush [her] teeth" and get dressed, men accompanied her to the back area of the apartment. She was paraded about "by bullies", and felt a sense of extreme violation. At some point, the men declared "this seems like a fairly decent family, let's get out of here." The comment "stays" with her, as evocative of the contempt with which these men behaved.
She said "we are a very private family" thus she herself did not seek therapy despite the distress she felt then, and still feels today. As Ms. Perrington testified about this event occurring more than four years ago, she was visibly upset, as she relayed to the court the experience of seeing her children being held at gunpoint by strangers, and her own outrageous awakening by armed men. She said that she "wakes up every day, looks toward her bedroom door, and "sees Officer Fernandez" and "this other man with a twitch" holding a gun.
It is well established in New York that damages may be recovered for purely emotional harm, even where there is no physical injury involved, especially where such claims of harm rest upon evidence substantiating their genuineness. For acts in the nature of trespass or civil assault or false imprisonment such as these, the fact of such violation alone is compensable in damages. A claimant may recover damages for emotional distress, even in the absence of a corresponding physical injury, when "there exists 'an especial likelihood of genuine and serious mental distress, arising from . . . special circumstances, [since it] serves as a guarantee that the claim is not spurious'. " Johnson v State of New York, 37 NY2d 378, 382 (1975), quoting Prosser, Torts § 54, at 330 (4th ed.); see Battalla v State of New York, 10 NY2d 237, 241-242 (1961)(3) ; see also Kennedy v McKesson Co., 58 NY2d 500, 504-505 (1983); Hering v Lighthouse, 21 AD3d 449, 450-451 (2d Dept 2005).(4)
While initially recovery was only allowed for negligently caused psychological trauma accompanied by contemporaneous or consequential physical injury [ Johnson v State of New York, supra], given that the rationale behind such limitation is based upon the ease with which emotional distress might be faked, it is understandable that there would be hesitation in basing an award of damages on purely emotional harm. Harm of an emotional nature may be found to exist where the underlying facts render it especially likely that the claim is genuine. See Hering v Lighthouse, supra at 451. There is no requirement that claimants be in fear for their personal safety (although such fear is apparent in the scenario presented by Ms. Perrington and her daughter), nor is medical treatment or psychological counseling essential to the claim. Garcia v Lawrence Hosp., 5 AD3d 227, 228 (1st Dept 2004).
Indeed, "[i]t has been stated that damages for 'injuries suffered from fright is subject to the ordinary rule that the amount awarded must be fair and reasonable and sufficient to compensate for the said injuries' ", (quoting Battalla v State of New York, (on remand) 26 AD2d 203, 207, 208, . . . (3rd Dept 1966), affd 24 NY2d 980 (1969). Delosovic v City of New York, 143 Misc 2d 801, 815 (5)
, affd 174 AD2d 407 (1st Dept 1991), lv denied 79 NY2d 751 (1991).
Punitive damages are not recoverable against the state or its political subdivisions, however. Sharapata v Town of Islip, 56 NY2d 332, 339 (1982).
Based on the credible and compelling testimony provided by Ms. Perrington before this Court, as well as that provided by her young daughter in the first phase of this trial, the Court is satisfied that the contemporaneous shock and horror of experiencing an apparent home invasion, and the present complaints of emotional injury attested to are genuine, substantial, and proximately caused by the intentional egregious conduct of the State's agents in effecting a warrantless and nonconsensual entry into Ms. Perrington's apartment on January 9, 2006, and in intentionally confining Ms. Perrington and her charges without privilege. It was established at the liability phase that these men terrorized a family in the safety of their home, failed to identify themselves, and brandished weapons at a 12-year-old girl, another teenager, and the adult responsible for their care, without any associated privilege.
Moreover, not only has Ms. Perrington suffered direct harm as did her daughter, she also witnessed the conduct directed at her daughter. She had a contemporaneous awareness of Brook being verbally abused, and threatened with imminent physical harm, and was clearly within the zone of danger for emotional harm suffered as a result of such observation as well. See generally Bovsun v Sanperi, 61 NY2d 219, 230-231 (1984). Under this State's jurisprudence a mother obviously falls within the scope of immediate family members for whom such recovery is allowed. Delosovic v City of New York, supra cf. Trombetta v Conkling, 82 NY2d 549 (1993) (niece not member of immediate family under zone-of-danger theory); Jun Chi Guan v Tuscan Dairy Farms, 24 AD3d 725 (2d Dept 2005) (grandmother not member of immediate family).
Based upon all of the foregoing, therefore, the Court finds that claimant Sharon Perrington has established by a preponderance of the credible evidence, and is entitled to, damages as a result of the unlawful conduct of the State's agents, in the amount of $80,000.00, and that claimant Brook Robinson, too, is entitled to damages in the amount of $20,000.00 for the harm she suffered for a total award of $100,000.00, plus interest from August 18, 2009, and thereafter to the date of entry of judgment pursuant to §§ 5001 and 5002 Civil Practice Law and Rules.
The motion for dismissal of that portion of the claim brought on behalf of Joshua Perrington, no longer a minor, based upon a failure to appear and prosecute at both phases of this bifurcated trial is hereby granted. All other trial motions not otherwise disposed of are denied.
To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).
Let judgment be entered accordingly.
November 18, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. Although urged to retain an attorney some months before trial [Court's Exhibit 1], and after some colloquy on the trial date, Ms. Perrington indicated that she had determined to proceed pro se.
2. References to page numbers in the trial transcript of the liability phase of the trial are denoted by [T - x ]. Other quotations are to audio recordings or trial notes with regard to the damages phase of the trial held October 19, 2010, unless otherwise indicated.
3. Claim alleging that the infant plaintiff was carelessly placed in a ski chairlift by a State employee who failed to secure and properly lock the seat belt, and that as a result of such negligent act the infant plaintiff became frightened and hysterical upon the descent, with consequential injuries, stated a cause of action.
4. Although the Appellate Division determined that the plaintiff had shown only constructive notice of holes in the ladies' restroom, designed by some unknown person for peeping in violation of statute, the Court also said: "While General Business Law § 395-b does not create an independent cause of action for persons harmed by a violation of its provisions, it does '[set] forth a duty owed directly to plaintiff[s] that may serve as a basis for a cause of action for the negligent infliction of emotional distress' . . . (citations omitted)" and that the trial court had "properly found the existence of special circumstances out of which would arise 'an especial likelihood of genuine and serious mental distress . . . [that would serve] as a guarantee that the claim is not spurious' and, therefore, allow recovery for emotional distress even in the absence of physical harm or fear of physical harm . . . (citation omitted)."
5. "The most difficult aspect of the motion before me is the amount of damages that may be upheld for the mother who witnessed the violent deaths of two of her children, bearing in mind that the normal grief associated with their death is not compensable . . . Unfortunately there is little guidance I was able to give the jury on this issue other than that the award be fair and reasonable, and there is little guidance available from reported decisions as to a sustainable sum. Under the circumstances, I find that to the extent the award exceeds $2,500,000 it is excessive." Delosovic v City of New York, supra, at 814 - 815.