DECISION Claimant alleges that on April 29, 2015, while he was a patient confined to Mid-Hudson Psychiatric Center (Mid-Hudson) after a criminal disposition, he was assaulted and battered by a State employee, Collins Noel, a Security Hospital Treatment Assistant (SHTA). Claimant alleges that the State is liable for his injuries based upon the theory of respondeat superior. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability. At the time of trial, claimant was a resident at Kirby Forensic Psychiatric Center and has had a history of multiple periods of time where he was an in-patient at psychiatric hospitals, dating back to the 1990s. Claimant has been diagnosed with various mental illnesses over the years, including chronic schizoaffective disorder and schizophrenia. He has also suffered from auditory hallucinations. Claimant was admitted to Mid-Hudson on March 5, 2015. He is 6 feet, 5½ inches tall and weighed approximately 250 pounds at the time of the alleged incident. Claimant testified that the incident occurred at approximately 11:30 a.m. in the dayroom area in Building 3 of Mid-Hudson. The dayroom is a patient recreation area located near the bubble. The bubble is where the staff, the SHTAs and the visiting attorneys sit. Claimant stated that there were a lot of patients in the dayroom at that time. Claimant testified that he knew SHTA Noel for approximately one week prior to the incident. According to claimant, a couple of days prior to the incident, claimant and SHTA Noel had a verbal altercation and claimant called the Justice Center to report that SHTA Noel had threatened claimant. Claimant further testified that while he was on the phone with the Justice Center, Noel threatened claimant for calling the Justice Center and stated that nobody calls the Justice Center on me and gets away with it (T:25-26).2 On the day of the incident in issue, claimant was meeting with Dana Mahoney, an attorney from Mental Hygiene Legal Services (MHLS). Mahoney sat in the bubble, where SHTA Noel was also present, while claimant sat on the other side of the bubble. Claimant and Mahoney spoke for approximately five minutes. Then, according to claimant, SHTA Noel interrupted the conversation by jumping up and cursing at claimant. Claimant responded by telling Mahoney that he had to leave to go to the bathroom. According to claimant, the following unfolded. As claimant attempted to turn towards the bathroom, SHTA Noel jumped in front of claimant and blocked claimant from proceeding. SHTA Noel called a code on his radio and then took a “big, thick” key ring off his pants and put it on his knuckle before striking claimant in the left eye, above the eyebrow. SHTA Noel struck claimant “continuously” on the right side of his face until claimant fell to the floor (T:34). SHTA Noel also hit claimant on the top of his head. SHTA then put his knee to claimant’s neck and continued to beat claimant as claimant’s psychiatrist, Dr. Jordan, the treatment team leaders, and the social worker watched (T:34). Photographs of claimant were taken on the day of the incident, after its occurrence (Claimant’s Exs. 1, 2; T:42). Black and white copies of the photographs were received in evidence (Exs. 1, 2). Claimant testified that the photographs accurately reflected his condition (T:43). He also testified that he had not received any first aid prior to being photographed; however on redirect examination, claimant stated that a nurse stopped the bleeding from his head, his face and above his eyebrow and treated his wounds (T:46, 66). There were no photographs taken of the top of claimant’s head; however claimant showed the Court a visible scar on the top of his head (T:48). Claimant also testified on cross-examination that while SHTA Noel had his knee on claimant’s neck, another unidentified staff member held claimant’s hands behind his back (T: 63). On cross-examination, claimant was asked about his diagnosis when he was an in-patient at a psychiatric hospital in Chicago. Claimant replied that he was never in a hospital in Chicago and that he “made that story up” when reporting his mental health history to the psychiatric staff at Mid-Hudson (T:51). He further stated, “I told them that I malingered most of my mental illness” (id.). When questioned about his psychiatric in-patient treatment in a hospital in North Carolina, claimant stated that he had “malingered there too,” but he also stated that he was unsure because he may also have been diagnosed as schizoaffective at that time (T:52). When questioned by the Court as to what he meant by malingering, claimant explained that he meant that he would lie to the hospital staff about hearing voices and being suicidal so that he would be admitted to the hospital for food, shelter and benefits because he was homeless (T:52-53). Claimant, who was 52 years old at the time of trial, stated that he had malingered over the course of his entire adult life (T:53). He also testified to having 54 criminal convictions (T:53-54). At the close of claimant’s testimony, the State moved to dismiss the claim for failure to make out a prima facie case. Claimant’s counsel opposed the motion. The Court reserved decision on the motion. The State then presented the testimony of three witnesses. Dana Mahoney, an associate attorney with MHLS, employed in the Mid-Hudson office, testified pursuant to the State’s subpoena. In 2015, Mahoney’s responsibilities included representing claimant’s interests with regard to his stay and retention at Mid-Hudson. At Mid-Hudson, there were no physical barriers between Mahoney and her clients, except for a desk. On the date of the incident, Mahoney became frightened by claimant’s actions because she felt that he posed a physical danger to her (T:81). As the incident unfolded, Mahoney was pulled away from the scene and therefore did not witness any physical altercation between claimant and SHTA Noel. Mahoney gave a sworn statement dated April 29, 2015, to a safety officer at Mid-Hudson regarding the incident (Ex. C; T: 77). Mahoney testified that her sworn statement contained more information than she recalled at trial (T:78). Her statement provides: “[o]n April 29, 2015 at appx [sic] 12:00 noon I was speaking with my client Daryl Thompson (hereinafter D.T.) during the course of the conversation DT [claimant] became [agitated] and verbally abusive toward me. He began to threaten my safety at which point SHTA Noel came to my side. DT then quickly approached the TA desk aggressive gesturing and attempting to attack me. SHTA Noel stepped in front of me to protect me. Another TA, Falero, grabbed and moved me out of harms way. I began to walk to the other side of the TA desk at which point DT moved to the same area and came behind the TA desk. A code was called and all of the staff on the ward moved toward DT asking him to calm down and step away from the desk. DT began to punch toward SHTA Noel and I left the ward” (Ex. C). Ashley Joseph, a SHTA at Mid-Hudson, testified that his responsibilities included assisting the treatment team with all legal and psychiatric aspects of the patients’ needs and maintaining the safety of the treatment team and the patients. On the date of the incident, SHTA Joseph was a trainee who was completing his one-year probationary period of employment. He was trained to use the least restrictive methods in ensuring patient compliance and to use verbal commands before using physical restraints to ensure the safety of the patients and the staff. SHTA Joseph observed claimant speaking with his MHLS attorney when claimant suddenly became very loud (T:95). Claimant was speaking over her and began to show signs of aggression and was highly agitated. A number of SHTAs responded by asking claimant to calm down a little bit; however the verbal redirections of the SHTAs were not working and claimant’s tone of voice and signs of aggression escalated. At that point, the SHTAs began to step in and, as they did so, claimant lunged at his attorney. The SHTAs then came around the desk to intervene and claimant’s focus shifted from his attorney to SHTA Noel. Claimant lunged toward SHTA Noel. A code was called and the doctors and nurses were called in to restrain claimant. Two SHTAs engaged in a two-person takedown of claimant to the floor. SHTA Joseph assisted the two SHTAs by holding claimant’s feet. Claimant was very difficult to restrain because of his size, his degree of anger and aggression, and his refusal to be compliant. A wrist-to-belt velcro restraint was applied to claimant’s hands in front of his body so that he could not use his hands to hurt himself or someone else. Claimant was then removed from the area. SHTA Joseph did not witness claimant at any time try to leave the area or go to the bathroom. SHTA Joseph did not witness SHTA Noel put his knee into claimant’s neck or throat. SHTA Joseph did not observe anything in SHTA Noel’s hands at any time during the incident, nor did SHTA Joseph observe SHTA Noel strike claimant. SHTA Joseph did not observe any blood on claimant or any injury sustained by claimant. SHTA Joseph did not hear anyone curse at claimant or act in a manner inconsistent with their training. On cross-examination, SHTA Joseph stated that the training prohibited the use of fists on a patient and if a patient had sustained a cut or was bleeding, that would be contrary to the training (T:109). Collins Noel, a senior SHTA who has been employed at Mid-Hudson for 16 years, testified that since the incident he has been promoted to Senior SHTA. He explained that, as a Senior SHTA, he supervises the SHTAs and his duties include evaluations of the SHTAs. SHTA Noel explained the process elicited from the required training that he and the staff underwent which mandated that the least restrictive means be used to maintain the safety of the patients and those around the patients. Verbal de-escalation was always used first and then eliciting the assistance of others to assist in the verbal de-escalation. The next step is to use verbal de-escalation with a touch. If that fails, then the next step is a manual restraint. In his tenure, SHTA Noel has had numerous occasions where a patient required restraints. SHTA Noel maintained that he did not threaten claimant or curse at him prior to the incident in issue or at any other time (T:121). SHTA Noel also denied carrying a metal ring and striking claimant (T:128). When asked on cross-examination about the location of his keys on his key chain at the time of the incident, SHTA Noel responded that they were in his work bag (T:135-136). On the date in issue, SHTA Noel heard claimant say to Mahoney, “[i]f they’re going to blame me for something, I might as well kill you” (T:121). SHTA Noel was at a distance of approximately eight feet from Mahoney at that time. SHTA Noel waited a minute or two to see if Mahoney would “correct” claimant’s behavior (T: 122). Claimant’s threats escalated and he threw his hands up in a fighting position and he moved towards Mahoney. SHTA Noel responded by telling claimant to sit down and knock it off as SHTA Noel removed Mahoney from the area (T:123). SHTA Noel continued to use verbal de-escalation to calm claimant as SHTAs Garcia and others assisted in using verbal de-escalation in an effort to calm claimant. According to SHTA Noel, claimant did not attempt to exit the area or go to the bathroom and no one was blocking his path towards the bathroom. Claimant continued to make threatening remarks and throw his hands in the air (T:125). Claimant then stated, “I am going to beat the crap out of you, I’m going to kill you, you know” (id.). A code was then called by radio for an Emergency Response Team and additional staff responded to the scene. As the responders and the staff attempted to restrain claimant, claimant punched SHTA Noel in the face and he went backwards (T:127). When asked on cross-examination if being hit in the face made him angry, SHTA Noel responded, “[n]o, it’s part of the job. I’ve been there 16 years; I’ve been punched, kicked, spit on for years” (T:138). When questioned again on cross-examination about whether being punched made him angry, SHTA Noel responded: “[i]t didn’t. I understand my job is working with people with psychotic problems and when they’re going through a crisis, they get upset, and I had guys apologize to me…either after their crisis or a day later after their crisis. And I’ve been for [sic] the New York State in the psych department rather [sic] different positions for almost 27 years now, so dealing with somebody with mental illness, it’s part of my life. I’m almost 50 years, so it’s half of my life I’ve been dealing with people with mental illness” (T:139). The staff moved claimant to the floor. SHTA Noel did not participate in the take-down of claimant. SHTA Noel maintains that, with regard to the incident, he and the other staff members he observed did not act outside of the scope of their training. SHTA Noel left the scene and went to the nurse’s station to obtain medical attention and ice for his swollen eye. SHTA Noel later returned to the area where he observed claimant in the quiet room in a wrist-to-belt velcro restraint. SHTA Noel did not observe claimant bleeding (T:141). Thereafter, SHTA Noel was charged with two allegations of abuse related to the incident. The charges were subsequently dismissed. At the conclusion of the case, the State renewed its motion to dismiss and claimant’s attorney opposed the motion. The Court reserved decision. Analysis It is well established that the State may be held liable, on the basis of respondeat superior, for an assault and battery committed by a State employee in the course of the employee’s employment, where the force used was excessive (see Jones v. State of New York, 33 NY2d 275 [1973]). The determination of whether force was used and whether it was excessive hinges upon the Court’s assessment of the credibility of the witnesses along with the Court’s resolution of the weight to be accorded to the evidence presented at trial (see Shirvanion v. State of New York, 64 AD3d 1113 [3d Dept 2009]; Wester v. State of New York, 247 AD2d 468 [2d Dept 1998]). Upon consideration of all the evidence presented at trial, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant failed to establish by a preponderance of the credible evidence that he was assaulted and battered by SHTA Noel. Significant to the Court’s assessment of claimant’s credibility was claimant’s testimony that he had lied over the course of his entire adult life to hospital staff about his mental illness in order to obtain admission to mental health facilities. This admission by claimant of continued long-term lying for personal gain detracted from claimant’s credibility regarding the alleged incident. Additionally, the Court carefully reviewed the black and white copies of the two photographs of claimant that were taken on the day of the incident after the alleged assault and battery upon claimant by SHTA Noel (Exs. 1, 2). While claimant testified that he was continuously struck by SHTA Noel, who allegedly had a big, thick key ring on his knuckle, and struck claimant in the left eye, above the eyebrow and on the right side of his face until claimant fell to the floor and that SHTA Noel then hit claimant on the top of his head, the Court finds that the photographs do not depict discernible injuries to claimant’s left eye, above his eyebrow and on the right side of claimant’s face that are consistent with the assault and battery as described by claimant. Rather, the only injury discernible from the photographs is depicted in Exhibit 2 and appears to be a superficial scrape on the right side of claimant’s face, near his ear. The Court finds that said injury appears to be more consistent with an injury sustained from the two-person takedown of claimant to the floor and the restraint of claimant while he was non-compliant. Also, while the Court’s view of the top of claimant’s head at trial revealed a small scar, it was not established by independent evidence that the scar resulted from the alleged incident. Further, the Court finds that claimant’s testimony, that SHTA Noel put his knee to claimant’s neck and continued to beat claimant as claimant’s psychiatrist, Dr. Jordan, the treatment team leaders, and the social worker watched, strains credulity. Contrary to the Court’s assessment of the credibility of claimant, the Court finds the testimony of SHTA Noel, a person committed to serving those suffering from mental illness, to be forthright and credible. Additionally, the Court finds the subpoenaed testimony of Dana Mahoney, an associate attorney with MHLS, to be credible and the Court accorded significant weight to her sworn statement given on the date of the incident (Ex. C). Finally, the Court finds the testimony of SHTA Joseph to be credible and his testimony adds further support to SHTA Noel’s version of the incident, while contradicting claimant’s version of the incident. Accordingly, the State’s motion to dismiss the claim, made at the conclusion of the trial, is hereby GRANTED and the claim is DISMISSED. Let judgment be entered accordingly. Dated: September 19, 2021
