Opinion
# 2012-049-112 Claim No. 111446 Motion No. M-81688
09-28-2012
SEDNEY DELANO v. STATE OF NEW YORK
Synopsis
Inmate claimant's excessive use of force and medical malpractice claim dismissed following trial. Claimant's motion to strike the defendant's answer and for monetary sanctions denied. Case information
UID: 2012-049-112 Claimant(s): SEDNEY DELANO Claimant short name: DELANO Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 111446 Motion number(s): M-81688 Cross-motion number(s): Judge: David A. Weinstein Claimant's attorney: Sedney Delano, Pro Se Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: September 28, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Sedney Delano brought this action by claim filed September 29, 2005, asserting causes of action for assault and battery, medical malpractice and negligence arising out of events alleged to have taken place on November 29, 2004, when Delano arrived at Southport Correctional Facility ("Southport") following a transfer from Downstate Correctional Facility. The claim charges that upon his arrival, Delano was denied his ulcer medication, and when he complained, was ultimately beaten by three Correction Officers: Gilboy, Delany and Rice.
This decision follows the trial of that claim, which was conducted via videoconference from Elmira Correctional Facility on February 17 and May 4, 2012. It also addresses Delano's post-trial motion no. M-81688 for a default judgment and for sanctions of $8,500.
At trial, Delano testified as follows:
At some point prior to the events at issue, Delano was hospitalized for a bleeding ulcer, and was prescribed Prilosec by Department of Correctional Services ("DOCS")medical personnel. In 2003, Delano stopped receiving this medication, because the DOCS contract for the drug had lapsed. Instead, Delano was given another medication, which was less effective and produced stomach acid. Moreover, Delano stated that during the two days prior to his November 2004 transfer to Southport, he ran out of that medication, and was given nothing for his condition. As a result, his ulcer grew worse during his bus trip to Southport.
By Chapter 62 of the Laws of 2011, DOCS and the Division of Parole were merged to form the Department of Corrections and Community Supervision. Since all the events at issue in this case pre-date the merger, the opinion refers to the state agency with authority over prisons as DOCS.
A nurse had provided Delano a note saying he should get medical attention as soon as possible upon his arrival at his new prison. Once at Southport, he approached Correction Officer Hendricks and told him he needed medical attention. Hendricks responded, Delano says, to "go lock the fuck in the cell." When a nurse came to assist Delano and said she would give some medication, Hendricks told him that if he asked again, he would "get what he has coming" when he got to B Block.
When the time came for Delano to leave the receiving room, Officers Gilboy, Delany and Hendricks put on his chain and handcuffs very tight, and escorted him to his cell. When he arrived at B Block, where he was to reside, Sergeant Hendricks left, and Gilboy and Delany said they would "fuck [him] up." He was told to face the cell while an officer inspected it. Delano then signed a form indicating that the cell was inspected, and complained once again that the chain was too tight and that his ulcer was bothering him. The officers said they were "tired of his shit" and that they had "told him they were going to fuck him up."
According to Delano, Gilboy then picked him up by the chain, slammed him into the cell bed, jumped on his back and began punching him in the upper body. Delany joined in, punching Delano's lower body. This attack proceeded for two to three minutes. At that point Officer Rice arrived at the cell in response to the commotion, and put his knee on Delano's head and choked him, while Gilboy pushed his knee into Delano's buttocks and pulled on his waist chain and Delany held his legs. Delano yelled out that he could not breathe, but the officers continued their assault.
Eventually, Sergeant Osborne arrived on the scene, and the beating ceased. The officers put a waist chain and leg restraints on Delano. He was brought to the shower, where he was stripped to his shorts, and photographs were taken. Claimant then sought and was given a medical examination, and explained what had occurred. He testified that the nurse who saw him failed to fully document his injuries; in particular he claims he had been punched in the back, cheeks, nose, and back of head, but no injuries to any of these locations were noted on the medical forms. He also did not receive his medication for another "week or two."
Delano stated that eight days later, he was taken to an outside hospital. At some point not clear from his testimony, an x-ray indicated that he had suffered a deviated septum. Nonetheless, he was told by nurses that there was no injury to his nose, and it took "months" for the injuries he suffered on November 29th to "come to light" through the examination of an outside specialist, and despite efforts by the prison to cover up the injury. He testified that surgery was scheduled, but on the day of surgery, he was not properly monitored and was allowed to eat, which precluded the doctor from performing the operation.
Delano introduced into evidence various documents, including medical records and the transcript of the administrative disciplinary hearing regarding charges brought against him arising out of this incident, as well as various memoranda authored about the incident by the correction officers on the scene. The medical records indicate that after the November 29th incident, the only injury identified was an abrasion on the bridge of his nose. Delano's testimony at the hearing was consistent in its general contours with his account at trial, although it varied in some of its details.Delano also gave the following account of his injuries at that proceeding:
For example, at the hearing Delano stated that he was attacked after he asked whether the officers had inspected his cell, while at trial Delano alleged that the statement which precipitated the assault concerned the waist chain and ulcer medication.
"Officer Gilboy . . . was bending my leg and he was just punching me all in my face and busted my edge and the whole left side of my face was swollen. If you look on top of my nose, you'll see a black mark on top of my nose. You see the lump on my nose? He busted my nose, punched me all in my head and my face. Punched me in my neck. . . ."(Cl. Ex. 5 at 10-11).
On cross-examination at trial, Delano was asked about a separate claim (No. 115606) he had filed concerning a motor vehicle accident during transport involving claimant that took place on December 9, 2004. Delano objected to its introduction, but I admit it into evidence for reasons set forth below. The claim alleges that on December 6, 2004, "claimant was evaluated and exam[ined] by N.P. Northrop in Southport C.F. Hospital and a[] thorough examination of claimant's head, nose, ear, eyes, neck, back, hip and knee were completely normal." Delano then asserts that on December 9th, as the result of the motor vehicle accident, "claimant suffered injuries to the head, eye, nose, ear, leg, shoulder, neck, back, spinal injury and soft tissue injuries." In his trial testimony, Delano asserted that in Claim No. 115606, he was merely quoting from the medical record in regard to his status on December 6th, and was not affirming the validity of the nurse's observations.
Delano also presented the testimony of Howard Michael, an inmate who appeared pursuant to Court order (see Delano v State of New York, UID No. 2012-049-005 [Ct Cl, Weinstein, J., Jan. 27, 2012]). Michael agreed, in response to a leading question by Delano, that he saw two officers push Delano into a wall by the window, picked him up in front of the cell by his waist chain, "slammed him into the cell," and cursed at him, telling him to "shut the fuck up." Michael also testified that he heard Delano screaming that he could not breathe with the officers sitting on him, that his ulcer was bothering him and he was not resisting. He stated that he could see some of the fracas in Delano's cell through the chicken wire of his own cell, although he resided "a couple of cells over."
Claimant called correction officers Gilboy, Delany and Rice as witnesses on his direct case. Both Gilboy and Delany testified that they were the only officers present in the reception room, and they escorted Delano to his cell, with the prisoner wearing a waist chain and handcuffs. Both disclaimed any recollection of claimant's illness, or his complaints regarding ulcer medication.
According to Gilboy, Delano would have been asked to face the window while the officers inspected the cell. They then removed his waist chain,and Delano was told to enter the cell. At that point, Delano "turned violently" towards Delany, trying to throw his left shoulder into him. Gilboy responded by placing Delano in a bear hug, and putting him on the bed face down, where he held him. Delany testified that he entered the cell, and held down Delano's legs, but denied that he was ever on top of claimant. Delany's testimony varied as to what Gilboy was doing at the time - at one point stating that Gilboy was holding Delano, then later saying that he could not recall.
Delany could not recall whether the waist chain had been fully removed at the time the confrontation began.
Gilboy could not recall if Delano engaged in any further aggressive actions once he was on the bed, while Delany stated that Delano was struggling, a detail left out of his memo written after the incident. The officers denied hitting Delano, but were unaware of how he received the injury to his nose.
Officer Rice testified that he arrived at the "tail end" of the incident. According to his testimony, Gilboy and Delany were restraining Delano on the bed when he arrived, and his role was essentially limited to placing leg restraints on claimant.
Finally, claimant presented the testimony of Nurse Weed, who testified as to her examination of claimant on the day of the incident. She stated that she did not observe, and therefore did not make any documentation of, any swelling to his face or any other injury beyond the abrasion on his nose. She did not treat the abrasion as (in her words) it could simply be cleaned with soap and water.
Claimant sought repeatedly to question Nurse Weed regarding an examination performed on his nose in 2006. The Court precluded such testimony, on the ground that there was no showing of a causal connection between the November 29, 2004 incident and the 2006 examination.
Finally, claimant introduced into evidence a 5-minute videotape which was produced at trial by defendant, and had been taken of claimant after the incident in question as part of the use of force procedures. The tape showed the defendant and particular areas of his body where he claimed to have been injured. After the viewing, claimant asserted that defendant should have in its possession additional video recordings relevant to the incident, and made application that the State either produce such videotape or be sanctioned for its failure to do so. Specifically, claimant contended that there was a video made of his walk from his cell to the showers, and that he had requested such a video at the time of his administrative hearing. The Court directed defendant to respond, and in accordance with such directive, defendant informed the Court by letter dated May 15, 2012 that: (1) a request had been made for available videotapes on July 17, 2006, and the only videotape located by the Inmates Records Coordinator at Southport was that shown at trial; and (2) in response to a further request by defendant's counsel on May 15, 2012, Captain Hetrick at Southport conducted a further review, and found no other videotape responsive to the claimant's request. Claimant has now moved for sanctions against defendant for its failure to produce this tape, which motion (M-81688) is addressed below.
Discussion
1. Evidentiary issues
Two objections were raised to exhibits which the parties sought to introduce. Claimant objected to the admission of Defendant's Exhibit A (for identification), his Claim No. 115606. Defendant objected to the introduction into evidence of Claimant's Exhibit 4 (for identification), which consists of a series of questions and answers in the same handwriting from various inmate witnesses, including Mr. Howard, prepared for claimant's disciplinary hearing. The State objected on hearsay grounds. I reserved decision on both objections, and now overrule the first, and sustain the second.
In regard to claimant's pleadings, statements made in a complaint from a prior action are admissible as an informal judicial admission (see Matter of Union Indem. Ins. Co. of N.Y., 89 NY2d 94, 103 [1996] ["an admission in a pleading in one action is admissible against the pleader in another suit, provided it is shown by the signature of the party, or otherwise, that the facts were inserted with his knowledge . . . ."] [citation and internal quotations omitted]).
As to Exhibit 4, it is unclear who wrote down the answers or on what basis, but in any case, these statements are at best hearsay. As claimant did not set forth any reason for their admission except to prove their truth, and as no apparent hearsay exception applies to this evidence, defendant's objection thereto is sustained (see Tyrrell v Wal-Mart Stores, 97 NY2d 650, 652 [2001] [claimant has burden to show exception to hearsay rule]).
2. Claimant's Motion No. M-81688
Claimant moves to strike the defendant's answer and for monetary sanctions, claiming that defendant failed to preserve and produce portions of a videotape showing claimant being escorted from his cell to the showers, before pictures were taken of him.
The record before me sets forth the following history of Delano's efforts to secure the videotape at issue: claimant sought the production of this video during his disciplinary hearing, and the existence of the videotape was acknowledged at that proceeding. Specifically, the hearing officer stated the following:
"You asked for an escort video tape to review? And, I have determined there was a tape and what happened was that involved just the part of the misbehavior report that was the escort to the shower afterward where that would have been after the time the description of the charges took place, alright? So, in other words, there was nothing relevant to the charges against you in that portion of the tape. So, I'm gonna deny that as part of the hearing."(Cl. Ex. 5 at 13).
Claimant objected, without stating a reason, but the hearing officer repeated: "There is nothing on the tape that exists that has any relevance to the hearing." The officer later stated that there was no video available from the hall on which Delano's cell had been located, as the camera there had been turned off after the tape ended at 2 PM, prior to the incident in question.
The Court's file does not contain any discovery request by claimant for the tape made during the pendency of this action, before 2011. On September 23, 2011, claimant served a notice to admit, which asked the State to acknowledge that the videotape had been made. No response is contained in the Court's file. Delano has submitted along with his present motion, however, a facsimile transmission from the Office of the Attorney General to an individual at DOCS' inmate records department made on July 16, 2006, listing "[m]aterials needed to respond to Sedney Delano's . . . discovery demands," including "Surveillance Videotape of incident from 11/29/04." It is not clear from the present record under what circumstances this document was provided to Delano, or what demands are being referenced therein. It does appear, however, that some sort of request was made to locate the videotape in 2006, in response to an effort by Delano to obtain it, and that DOCS was unable to find the tape at that time.
Prior to trial, claimant moved to subpoena various materials from defendant, including the videotape of the use of force, and surveillance footage of the area where the incident allegedly took place. In a ruling dated January 27, 2012, I stated as follows:
"The State also represents that it has a videotape from the use of force, which it will produce at trial. Claimant makes no showing that any other relevant tapes exist. Claimant's application for these tapes is therefore denied, except to the extent that the State will make available at trial the specific materials set forth in its affirmation."(Delano, UID No. 2012-049-005, supra).
In support of the present motion, claimant contends in a supporting affidavit that had the videotape at issue been produced:
•It would have shown the escorting correction officers "haphazardly assaulted claimant during [the] move from B3-12 to B1-2 shower. In particular, they threatened that he had to walk or "get it again," and that he should "stop screaming like a girl." Further, they "pushed and held claimant's head down while pulling him by waist chain forward violently."
•It would have confirmed claimant's statement regarding the injuries he suffered, and Nurse Weed's demeanor during the examination.
• It would have shown that Officer Gilboy, while taking use of force photographs, told other correctional staff "my knuckles are burning" while displaying his fingers, and boasting "I hit him with everything I had," while shaking his hands in pain and laughing.
In opposition to the motion, the State has submitted the affidavit of Captain Harry Hetrick of Southport. Captain Hetrick avers that on May 15, 2012, he reviewed the file of all Southport recorded videotapes, and the one introduced at trial is the only video he uncovered is the one presented at trial. A memorandum by Hetrick dated May 15th makes the same representation.
While defendant's filing indicated that the videotape does not presently exist (and defendant's May 15th letter and the fax from the Attorney General's Office appended to claimant's motion indicate that defendant was unable to locate it in 2006), claimant's assertion that a videotape was made of his walk to the showers from his cell finds support in the record. As noted above, the hearing officer indicated that he had viewed this tape, although he saw nothing relevant to Delano's disciplinary proceeding thereon. A note that appears to be from Delano's staff assistant in the proceeding says the following: "Wants tape preserved for B-3 [where claimant's cell was located] - advised no tape on company itself, only at entrance to company (B-3) - still wants it preserved; between 3-4 PM on 11/29/04." Further, a memorandum from Sgt. Osborne to Supt. McGinnis dated November 29, 2004, states that claimant was "moved to B1-1," without "further incident, and that "[t]he move was also videotaped by CO Hangerford." (Aff. In Supp. Exs. B, E).
In light of such evidence, claimant contends that this videotape was wrongfully erased, and on this basis moves for sanctions pursuant to CPLR 3126. That provision states in pertinent part as follows:
"If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just . . . ."
The Court has broad discretion to impose any particular remedy under this provision, which may include precluding proof favorable to the sanctioned party; requiring payment of costs; employing an adverse inference; and striking the spoliator's pleading (see Ortega v City of New York, 9 NY3d 69, 76 [2007]). The last option, however, is a "drastic remedy" reserved for instances of bad faith, or wilful, contumacious misconduct (see O'Connor v Syracuse Univ., 66 AD3d 1187, 1191 [3d Dept 2009]), lv dismissed 14 NY3d 766 [2010].
The State has not, in this case, violated any apparent court order. The Court's decision on January 27th directed only that the State produce the videotape referenced in its affidavit, which it has done. Nonetheless, Rule 3126 provides that a court may find a violation thereof if the State "wilfully failed to disclose information that ought to have been disclosed . . .," even in the absence of a court order (see Squitieri v City of New York, 248 AD2d 201, 203 [1st Dept 1998]).
A party seeking sanctions based on spoliation of evidence must show: (1) that the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a "culpable state of mind"; and (3) the destroyed record was relevant to the moving party's claim or defense; i.e., the trier of fact would find that it would support such claim or defense (VOOM HD Holdings LLC v EchoStar Satellite L.L.C., 93 AD3d 33, 45 [1st Dept 2012]). Mere negligence may serve as the requisite state of mind for purposes of this test (Id.). However, where the destruction of evidence is merely negligent, the party seeking the sanction must demonstrate the relevance of the evidence; where the destruction is intentional or the result of gross negligence, relevance is presumed (Id.).
As noted above, there is evidence in the record that a videotape of Delano being walked from B3 to a shower on B-1 existed at one time. To the extent the tape contained evidence relevant to the use of force claim, DOCS would have had an obligation to maintain it. Such an obligation may attach prior to the commencement of a lawsuit, when litigation is reasonably anticipated (id. at 36). Here, where there was a use of force, and where claimant asserted in his own disciplinary hearing that excessive force was used, litigation arising from the November 29 incident could reasonably have been expected by DOCS.
Nonetheless, I do not find that the State's failure to the video constitutes a willful failure to disclose information that should have been disclosed. There is nothing in the record that shows that the failure to maintain the videotape was grossly negligent or intentional. According to the statements made by the hearing officer, there was nothing on the videotape that was in any way relevant to the disciplinary proceeding, which addressed in detail the use of force. Further, claimant does not appear to have filed a formal discovery request for the tape for the first six years of this case, and when in 2006 and in his pre-trial motion he made some effort to locate it, the internal State documents before me indicate that defendant sought to comply (see O'Connor, 66 AD3d at 1191 [upholding denial of sanction, in part, where "defendant conducted a thorough, though unsuccessful, search of its records" for evidence at issue]). In any case, claimant has failed to prove that the state intentionally destroyed the tape, as there is simply no evidence in the record to support such a charge (see Popfinger v Terminix Intl. Co. Ltd. Partnership, 251 AD2d 564, 565 [2d Dept 1998] [no sanctions against plaintiff where "defendant failed to demonstrate that the plaintiff's action was an intentional attempt to hide or destroy evidence"]; Hartford Fire Ins. Co. v Regenerative Bldg. Constr., 271 AD2d 862, 864 [3d Dept 2000] ["it cannot be presumed," on basis of unclear record, that evidence "was discarded by plaintiff in an effort to frustrate discovery"]).
Delano therefore has the burden of showing the tape's relevance. This he has failed to do. While he has alleged the existence of various revelations on the tape that would be material to his claim, I find the statements made in his affidavit to this effect to be incredible. Delano himself was present when the video was made, and according to his present account, when correction officers made stark admissions regarding the beating they had purportedly administered, continued their assaultive behavior and made further threats to claimant. Yet in Delano's testimony, he made no mention of any of these things, nor are they referenced in his claim, or in his testimony at the administrative hearing, or in his response to the hearing officer when the latter indicated that there was nothing of substance on the video. Further, he had an extensive opportunity to question the officers at issue, and asked them nothing about the events he now claims to have occurred while he was being escorted. In essence, Delano asserts in his motion that the videotape contains a trove of inculpatory statements by the corrections officers to which he could have testified himself, and demonstrates that a second beating took place on November 29th on the way to the shower - yet he left these central facts out of his claim and testimony altogether. Indeed, he only mentioned these things when it became necessary for him to demonstrate the relevance of the tape.
Since I do not find these assertions to be truthful, I find that claimant has failed to meet his burden of showing relevance. For the same reason - and in light of the fact that claimant could have presented his own testimony about the period covered by the videotape but did not - I cannot say he was prejudiced by the State's failure to preserve this evidence (see O'Connor, 66 AD3d at 1191 [no prejudice to claimant for defendant's failure to locate witness statement, where witness was available to testify]; Clark v Schuylerville Cent. School Dist., 74 AD3d 1528, 1529 [3d Dept 2010] ["vague and speculative allegations of prejudice arising from the alleged destruction of documents do not support a claim of spoliation"]).
For all these reasons, claimant's motion no. M-81688 is denied (see Hartford Fire Ins. Co., 271 AD2d at 864 ["it has not been sufficiently established in this record that [defendant's] defense of the action will be prejudiced by its inability to examine [the evidence at issue and] [t]herefore we cannot say that Supreme Court clearly abused its discretion in denying" motion for spoliation sanctions]). I proceed, then, to the merits of Delano's causes of action.
3. Delano's Causes of Action
A. Assault and Battery
By statute, a correction officer may not "inflict any blows whatever upon any inmate, unless in self defense, or to suppress a revolt or insurrection" (Correction Law § 137[5]). When, however, "any inmate . . . shall offer violence to any person, or do or attempt to do any injury to property, or attempt to escape, 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, to secure the persons of the offenders and to prevent any such attempt or escape" (Id.; see also 7 NYCRR 251-1.2[d] [a correction officer "shall not lay hands on or strike an inmate unless the employee reasonably believes that the physical force to be used is reasonably necessary: for self-defense; to prevent injury to person or property; to enforce compliance with a lawful direction; to quell a disturbance; or to prevent an escape"]).
When force is needed "only such degree of force as is reasonably required shall be used," (7 NYCRR § 251-1.2[b]) and "[t]he greatest caution and conservative judgment" must be exercised in making such determination (7 NYCRR § 251-1.2[a]). The State may be held liable where the particular use of force is unreasonable or excessive under the circumstances (see e.g. Bush v State of New York, 57 AD3d 1066, 1067 [3d Dept 2008]).
Excessive force cases are highly fact-specific, and hinge heavily on credibility determinations (see e.g. McDonald v State of New York, UID No. 2011-041-505 [Ct Cl, Milano, J., May 3, 2011]; Merced v State of New York, UID No. 2010-015-513 [Ct Cl, Collins J., Sept. 17, 2010]). Claimant has the burden of proving his claim by a preponderance of the evidence, and the State is not required to put on any evidence at all (see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976]; Cooper v State of New York, UID No. 2010-037-512 [Ct Cl, Moriarty III, J., Nov. 1, 2010]).
The testimony presented by both claimant and defendant, and the documentary records, demonstrates that correction officers grabbed Delano outside his cell on November 29, 2004, and held him down on the bed until his legs were placed in irons. The testimony offered on behalf of claimant and defendant differs, however, as to (1) what brought about the confrontation; and (2) the nature of the force used, with claimant contending that he was beaten about the face and upper body, and defendant's employees asserting that they did no more than hold him down on the bed.
On the latter point, I find claimant's testimony is simply not credible. As noted, the contemporaneous medical records do not provide any support for the notion that claimant was pummeled repeatedly in the head and upper body, in the manner he suggests. Indeed, besides a minor abrasion on his nose, they do not reflect any physical evidence of the attack he describes at all.
Delano attributes the disparity between his statements and the documentary evidence to a cover up by DOCS medical staff. This argument is severely undermined, however, by his own claim no. 115606, in which he touts the absence of any evidence of injury on December 6th to the very parts of his body that he now asserts were severely hurt the week before. While Delano stated in his trial testimony that the earlier claim merely cited what the medical staff had said, read in context, the import of his statements in claim no. 115606 is that he had a clean bill of health at the time of his December 9th vehicle accident, and the accident therefore caused the numerous injuries he alleges having suffered to his upper body on that date. Similarly, claim no. 115606 recites numerous medical examinations regarding injuries to his nose that resulted from the motor vehicle crash - injuries, which at the present trial (without mentioning the accident), claimant asserted were caused by his claimed beating at the hands of correction officers.
In his claim filed in this action, claimant says in regard to many of his injuries that they "got worst [sic] on 12/9" (e.g. claim no. 111446 at 3), without mentioning that the "worsening" was (according to claimant's filings in claim no. 115606) the result of a motor vehicle accident.
Put briefly, if claimant wishes to assert in one action that his injuries were the result of a motor vehicle accident, and in another that they were caused by a beating at the hands of correction officers, he cannot expect that his testimony will have any credibility in the eyes of the Court. I find, therefore, that he has not proven any use of force by correction officers except that he was grabbed, held down on the bed, and placed in leg irons.
While certain aspects of claimant's account also receive support from the testimony of Mr. Michael, much of that witness' statement as to what he saw concerned Delano's protests, not the actions of the officers. And his one attestation regarding the latter - that he saw them slam Delano into the wall - was not mentioned in Delano's testimony. Finally, it is difficult to believe that he was able to clearly view the incident inside the cell from several cells away down the hall.
As to the cause of the incident, Delano claims that the officers were seeking to avenge Delano's complaints about his ulcer, while the defendants' witnesses contend that Delano set off the confrontation by turning to attack Officer Delany. Claimant has the burden of proof in this action. In light of the issues with the general credibility of his testimony stated above, and the implausibility of the scenario he paints - that two officers launched an unprovoked attack on claimant because he had politely asked about his medication and that his waist chain be loosened - I find that he has not proven this allegation.
In sum, I find that claimant has failed to show that defendant used excessive force, and his claim for assault is dismissed.
B. Medical Malpractice and Negligence
Claimant asserts that prison officials failed to give him medication or properly treat his injuries in the aftermath of the purported assault on November 29, 2004. The claim may also be read to extend to Delano's claim that defendant did not appropriately treat his ulcer, and deprived him of ulcer medication during his transfer to Southport.
Despite claimant's reference to a claim for negligence, where the "the gravamen of the [cause of action] is negligence in furnishing medical treatment." it sounds in medical malpractice (Scalisi v New York Univ. Med. Ctr., 24 AD3d 145, 146-147 [1st Dept 2005] [citations omitted]). To prevail on such a claim, Delano must show via expert testimony that "there was a deviation from accepted standards of medical care and that such deviation was the proximate cause of the injury" (Hytko v Hennessey, 62 AD3d 1081, 1083-1084 [3d Dept 2009]; accord Caruso v Northeast Emergency Med. Assoc., P.C., 85 AD3d 1502 [3d Dept 2011]), unless the claim concerns "matters within the ordinary experience and knowledge of laypersons" (Mosberg v Elahi, 80 NY2d 941, 942 [1992]). Whether claimant received the proper treatment for his ulcer or any injuries suffered on November 29th (even if I were to credit his account) are clearly outside the understanding of laypersons. Since he has not presented expert testimony in support of these causes of action, they must be dismissed.
In light of the foregoing, motion no. M-81688 is denied, and claim no. 111446 is dismissed in its entirety.
All motions that have not been ruled upon are hereby denied.
Let judgment be entered accordingly.
September 28, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims