New York State Court of Claims

New York State Court of Claims
AVELLA v. THE STATE OF NEW YORK, # 2010-033-603, Claim No. 106830


Case information

UID: 2010-033-603
Claimant short name: AVELLA
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 106830
Motion number(s):
Cross-motion number(s):
Judge: James J. Lack
Claimant's attorney: Joel Lutwin and Aaron Lebenger, Esqs.
By: Joel M. Lutwin, Esq.
Defendant's attorney: Andrew M. Cuomo, New York State Attorney General
By: Ralph J. Bavaro, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 22, 2010
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


This is a timely filed claim for the wrongful death and conscious pain and suffering of Frank R. Avella (hereinafter "decedent") by Peter Avella as Administrator of the Goods, Chattels and Credits of Frank R. Avella, Deceased, (hereinafter "claimant") based upon the alleged intentional torts of employees of the State of New York (hereinafter "defendant"). On November 5 and 6, 2009, a bifurcated trial on the issue of liability was held.

On August 1, 2002, between 8:30 p.m. and 9:00 p.m., New York State Troopers Chris I. Budesa (hereinafter "Trooper Budesa") and Kevin J. Ring (hereinafter "Trooper Ring") were called to the Meson Olé restaurant on Montauk Highway, Southampton, New York. They had been directed there via a radio call to respond concerning a disorderly patron. According to an investigation by the Troopers, decedent was in the bar area of the restaurant with his friend Richard Colantuono (hereinafter "Colantuono"). Decedent walked over to a tip jar and put his hand in it and grabbed money. One of the employees approached decedent to inquire as to what decedent was doing.(1) Decedent dropped the money back into the tip jar. The employee noticed decedent was very intoxicated. The employee then called the police, at which point decedent began to argue with the employee and it appeared as if decedent was trying to intimidate the employee.

When they arrived, Trooper Ring remained outside to question a man leaving the restaurant. Trooper Budesa entered the restaurant to investigate the radio call. He spoke to an employee and then approached decedent. Trooper Budesa described decedent as approximately 5'10", 220 to 230 pounds and muscular and he asked decedent to leave the restaurant. When decedent refused Trooper Budesa pulled decedent from his bar stool and started to walk decedent toward the door. As decedent was removed from the bar stool, he stumbled and fell. As he got up, decedent took an aggressive stance toward Trooper Budesa, but then allowed Trooper Budesa to walk him out of the restaurant.

Outside, decedent briefly stumbled again and was steadied by Trooper Budesa. Decedent continued his loud objections to being removed from the restaurant. Trooper Ring observed decedent "chest to chest" with Trooper Budesa.(2) Decedent identified himself to Trooper Budesa as a police officer.(3) Trooper Budesa requested identification. Decedent made a move to reach in his pocket and then quickly and forcibly shoved Trooper Budesa. Trooper Budesa then attempted to grab decedent's arm to handcuff him. Decedent pulled away from Trooper Budesa.

Trooper Ring stood alongside decedent, put a leg in front of decedent and pulled him to the ground. Trooper Ring and decedent struggled on the ground. Decedent was trying to get to his feet and trying to strike Trooper Ring. Trooper Ring was trying to keep decedent on the ground. Trooper Ring was unable to control decedent and used his pepper spray(4) to try and subdue decedent. The pepper spray did not seem to slow down decedent, who continued to struggle. Trooper Ring struck decedent in his face with a closed fist. Decedent was still undeterred in his struggle and Trooper Ring struck him a second time.

Decedent was still forcibly struggling against Trooper Ring, so Trooper Budesa came to Trooper Ring's aid. Trooper Budesa testified he had tried to go to Trooper Ring's aid when decedent was first taken to the ground, but he was interrupted by the man Trooper Ring spoke to outside the restaurant upon the Troopers' arrival. The man was Colantuono. Colantuono attempted to verbally interfere with the arrest. Trooper Budesa dealt with his interference and ordered Colantuono to leave the area. When Colantuono left the area, Trooper Budesa was able to assist Trooper Ring.

With both Troopers' attention focused on decedent, decedent's resistance subsided and he was handcuffed. Decedent was placed in the Troopers' vehicle. Trooper Ring transported decedent to the Trooper barracks in Riverhead, New York. Trooper Budesa remained at the restaurant to obtain witness statements concerning decedent's attempted larceny.

Colantuono also testified at trial. His version of what happened outside of the restaurant is markedly different from the Troopers' recounting of the events. Colantuono indicated he and decedent had been at a Japanese restaurant to eat. While there, they consumed four to five shots of sake each. Colantuono and decedent then went to the Meson Olé restaurant where the incident occurred. Colantuono said he and decedent were in good spirits. When they walked into the restaurant, they went to the bar and ordered drinks. Decedent played a joke by picking up a tip jar. Colantuono said everyone knew it was a joke but the bus boy looked "aggravated". Colantuono went outside to smoke a cigarette.

While Colantuono was outside he saw the Troopers pull up to the restaurant. One of the Troopers asked him if there was a problem inside. The witness responded "not at all". According to Colantuono, both Troopers went into the restaurant. Shortly thereafter, decedent was being shoved out of the front door by both Troopers. Decedent was questioning the Troopers as to what the problem was. Decedent was apologizing to the Troopers for whatever he may have done and was saying he would leave. Decedent put his hand out toward the Troopers. One of the Troopers knocked the hand down and the other grabbed decedent's arm and put it behind his back. The Troopers threw decedent face down into the cement and put a knee into his back. The Troopers handcuffed decedent and then pepper sprayed him. Decedent was screaming. When Colantuono inquired of the Troopers why they were doing this, he was physically threatened by a Trooper. One of the Troopers then punched decedent in the face two to three times.(5) Decedent was thrown head first into the Troopers' vehicle and the door was slammed on his feet "numerous amounts of time[s]". Colantuono could hear decedent screaming in the truck. Colantuono testified both Troopers left the restaurant in the vehicle.

Each of the parties called an expert concerning excessive force. Gerald Schlissel (hereinafter "Schlissel") testified on behalf of claimant. Schlissel is a retired NYPD sergeant.(6) Schlissel testified his opinion was based upon the review of the depositions of the Troopers and his own investigation into the incident.(7) Schlissel opined the Troopers departed from good and accepted arrest procedures and used excessive force. He found no credibility to the Troopers version of the events. The basis for his non-belief of the Troopers was the lack of injuries to the Troopers as well as his interview with "multiple witnesses".

On cross-examination, Schlissel conceded force is necessary in certain instances. He agreed the level of force required can be viewed on a continuum. The level of force may rise depending on the circumstances. Schlissel further agreed he was not aware of what level of force decedent was using.

Reginald Allard (hereinafter "Allard") testified for defendant. Allard is a former police officer and is currently a police consultant.(8) Allard reviewed the deposition testimony of the Troopers.(9) Allard opined, given the level of resistance of decedent, the Troopers used an appropriate level of force in effectuating the arrest of defendant. The level of force gradually escalated in response to decedent's increasing resistance/behavior. On cross-examination, the witness was repeatedly asked if, premised on the supposition that the Troopers were found not to be credible, would it change his opinion as to whether or not excessive force was used by the Troopers. Time and again, Allard answered it was the Court's job to determine credibility, not his.

When the claim was originally brought, it made allegations of false arrest and false imprisonment in addition to the claim of the use of excessive force. As a result of this incident, decedent was charged with Attempted Petit Larceny, Disorderly Conduct and Resisting Arrest. Decedent pled guilty to the charge of Disorderly Conduct in full satisfaction of the charges he faced. Decedent was sentenced by the trial court and he fulfilled the terms of his sentence. Defendant correctly argues, and claimant concedes, the allegations of false arrest and false imprisonment are negated (Broughton v State of New York, 37 NY2d 451, cert denied sub nom. Schanbarger v Kellogg, 423 US 929).

Courts have consistently held a police officer is authorized to use such force as is objectively reasonable under the circumstances (Passino v State of New York 175 Misc 2d 733 aff'd 260 AD2d 915, lv denied 93 NY2d 814; Tomaino v State of New York, 22 Misc 3d 1013). However, an officer, even in the lawful course of his duty, may be liable for assault if excessive force is used (Jones v State of New York, 33 NY2d 275; Stein v State of New York, 53 AD2d 988). "Determining whether a police officer wielded excessive force requires a fact-specific analysis in which an array of factors may be relevant, including the nature of the officer's intrusion, the severity of the crime, whether the suspect posed an immediate threat and whether the arrest was actively resisted (see Graham v Connor, 490 US 386; Monday v Oullette, 118 F3d 1099; Lamb v City of Decatur, 947 F Supp 1261)" (Passino at 736).

An allegation law enforcement personnel have used excessive force during the course of an arrest, an investigatory stop or some other prearraignment seizure is to be analyzed under the 4th amendment of the United States Constitution and a standard of objective reasonableness (Passino v State of New York 175 Misc 2d 733 aff'd 260 AD2d 915, lv denied 93 NY2d 814; see Graham v Connor, 490 US 386). "The court must be cautious not to impose upon the strenuous and often dangerous circumstances encountered by police on the streets a standard unduly colored by the calm of the Judge's Chambers (Johnson v Glick, 481 F2d 1028, 1033, cert denied sub nom. John v Johnson, 414 US 1033; see Graham v Connor, supra; Lennon v Miller, 66 F3d 416, 425-426)" (Passino at 736). "The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" (Graham at 396).

The question of what is a reasonable use of force is left to the trier of fact.(10) It is the credibility of the witnesses which will determine whose version of events the trier of facts believes (Hoberman v City of New York, 25 Misc 3d 1244A).

In considering whether claimant has met its burden of proving excessive force, the Court has reviewed the exhibits admitted into evidence and the testimony of the witnesses. The testimony of the witnesses has been evaluated for credibility by the Court, as the trier of fact, by listening to the witnesses' testimony and observing their demeanor.

Claimant asks the Court not to discount his expert's opinion because it is based upon hearsay evidence, the alleged eyewitness account of Angela Navaro and "multiple eyewitnesses". The Court cannot rely on these phantom eyewitnesses. It is incredible to think claimant's expert found "multiple eyewitnesses", or even just Angela Navaro, to an unprovoked and horrific beating which led to decedent's death and claimant would not move heaven and earth to present these witnesses at trial. Schlissel's opinion is based primarily upon the version of events by Colantuono. The Court finds no credibility in Colantuono's testimony.

Colantuono had been a friend of decedent's for approximately 20 years, since they were 7 years old. It stretches the limits of credulity to think someone could watch a lifelong friend get thrown out of a door, tackled to the ground face first into cement without provocation, kneed in the back, handcuffed, pepper sprayed, punched in the face numerous times, thrown into a car headfirst and have his feet slammed by a closing car door multiple times, listen to the screams of agony of this lifelong friend and then step back because he did not want "anything to do with this."

On the other hand, the Court has the testimony of Trooper Budesa and Trooper Ring who first met decedent when responding to a radio call. The Troopers appeared professional and forthcoming during their testimony. Claimant would have the Court believe the Troopers started on the evening of the incident covering things up because the witness statements taken by the Troopers did not cover the "assault" of decedent. However, as defendant correctly argues, the Troopers were not documenting a defense to their alleged "assault". Rather, the Troopers were documenting decedent's activities in the restaurant.

The Court finds the Troopers responded in an appropriate fashion to decedent's escalating behavior. Decedent clearly was aggressive on the date of the incident. His aggressive behavior began with the intimidation of the bus boy and then moved to Trooper Budesa and Trooper Ring. Decedent was uncooperative in obeying the commands of Trooper Budesa and even when he fell, due to his intoxicated state in the restaurant, decedent got up and took an aggressive stance toward Trooper Budesa. Decedent's behavior escalated quickly outside. Law enforcement personnel cannot allow a civilian to shove them without then subduing the offender. The Troopers in this case responded in ever increasing increments of force based upon decedent's actions.

Based upon the foregoing, the Court finds in favor of defendant and dismisses the claim. Any motions not specifically ruled upon are denied.

Let judgment be entered accordingly.

April 22, 2010

Hauppauge, New York

James J. Lack

Judge of the Court of Claims

1. The description of what occurred in the bar, prior to the Troopers' arrival is taken from claimant's Exhibits 3 and 4. These exhibits are statements of the employees of the restaurant.

2. Trooper Ring described decedent as approximately 5'8" to 5'9", about 210 pounds, stocky and muscular.

3. Decedent was not a police officer.

4. Trooper Ring testified he used a -second blast of the pepper spray.

5. According to the witness, seeing decedent get punched caused him to step back because he did not want "anything to do with this."

6. The witness' curriculum vitae was entered in evidence as claimant's Exhibit 8.

7. According to the witness, he interviewed Colantuono, Carmella Avella (decedent's mother), Anna Stripling (decedent's aunt) and Angela Navaro. The only eyewitnesses to the incident were Colantuono and Angela Navaro. Any statements made by Ms. Navaro to the witness are hearsay and not admissible as evidence. No statements by Ms. Navaro were offered by claimant. Schlissel would state his opinions of what occurred were based upon his investigation. Ms. Navaro was not called to testify by claimant.

8. The witness' curriculum vitae was entered in evidence as defendant's Exhibit G.

9. On direct, Allard said he reviewed other materials which included medical records. The witness stated the other materials did not contain any first-hand observations of the incident.

10. The court is the trier of fact in the Court of Claims.