In the case before me, claimant Lisa Mattaway, a Senior Assistant District Attorney in the Office of the Bronx District Attorney, alleges that on September 21, 2015 she was assaulted in the Bronx County Courthouse. She has brought a claim against the State of New York on the ground that the injuries she suffered were due to the negligence of the State court officers who were escorting her assailant, Shaquana Motley-Logan (“Motley”)1, who failed to prevent the attack. The matter came before me for trial conducted virtually on stipulation of the parties, commencing on October 20, 2021. Claimant presented her own testimony, and both parties also presented the testimony of Lieutenant Phillip Scott, and Court Officers Noelia DeGracia, John Riga, William Solorzano, and Charles McClung.2 Ms. Mattaway testified as follows: She has worked for the Bronx DA for 33 years. At the time of the incident in question, her work sometimes took her to the Bronx Criminal Court/Family Court building on 215 East 161st Street (the “Courthouse”). On September 21, 2015, she was working at the Courthouse, in the video statement duty room located on the first floor lobby level, in a “secured, restricted area” (October 5 Transcript ["10/5 Tr"] 17, 20-21, 44). At about 1:00 p.m., Mattaway took her lunch break (id. at 22). She left the video statement room and proceeded to the elevator bank so that she could take an elevator to the complaint room on the fourth floor (id. at 22-24). The walk to the elevators was about 100 feet, and the elevator bank and surrounding area was busy with people leaving for lunch (id. at 24, 33, 55). Mattaway pushed the button and waited, standing close to the elevator opposite the one she was facing (id. at 35, 50). When the doors opened there was “this violent, angry, loud woman who charged at [Mattaway] in the elevator and there were two court officers behind her,” standing in the back while the woman was in the front (id. at 36). The woman was. according to claimant, “twisting her body,” and “moving her arms about” and “struggling” (id. at 45). The woman, later identified as Motley, screamed “you fucking bitch” and then came out of the elevator and kicked claimant in the groin area, sending her into the wall (id. at 39-41). According to Mattaway, the woman was not handcuffed nor was she being held by the officers behind her, although the officers did try to pull her back when she attacked (id. at 40-41). Claimant had not seen anyone trying to clear the elevator area of people before the assault (id. at 40). Ms. Mattaway had never met Ms. Motley prior to the incident, and had never learned of her physically assaulting someone in the Courthouse previously (id. at 53-54). Lieutenant Scott testified3 that he had been a New York State Court Officer for 18 years, and was a sergeant at the time of the incident in question (id. at 62-63). His training covered the handling of emotionally disturbed persons, or EDPs4, and he stated that the officers’ practice was that colleagues and supervisors should be notified when an officer is dealing with an EDP5 (id. at 64-66, 81). This notification requirement is also set forth in the Court Officers’ policy manual regarding EDPs (Ex 1, §3.80). Scott acknowledged that there was a risk of assault when a prisoner is being transported (10/5 Tr at 69). He differentiated generally between two classes of individuals escorted by officers at the courthouse: prisoners (who are coming from “corrections”) and “individuals being detained” (which I will refer to as “detainees”). Detainees may be under arrest, but need not be (id. at 70). Under the Court Officer policy manual, prisoners escorted in the building must be kept under “continuous control and observation,” and handcuffed behind their backs (Ex 1 at 4). Continuous control meant, according to Scott, that “you have to have your hands on them…[a]nd — — to — to be able to control them if — if they do anything because…you just have to make sure you control them and the way that you do it is by, continuously, is by having your hands on them” (Tr 76). The court officers’ policy also provided that a prisoner should not be escorted “through a public area unless necessary,” and when necessary the officer “shall ensure that area is secured in accordance with the facility standard operating procedures,” and shall not permit contact with a prisoner (Ex 1 at 6). This meant, according to Scott, making sure “nobody’s around” when the individual is being transported — meaning members of the public should not be present (id.). So, he explained: “you might be on the seventh floor and you’re going to the first floor, you have to make sure that the elevator’s secure, you have you have to make sure that the floor’s secure, the elevator banks are secure and when you’re transporting you have to make sure that everything in front of you is — is pretty secure, to the best of your ability because you have to understand that we have a crowded building at that time” (id. at 74). Scott agreed that these policies also applied to detainees, although the manual specifically couches these rules as concerning “prisoners” (id. at 71-77). He said individuals being escorted must be handcuffed under all circumstances, even if they are not under arrest (id. at 77-79). Scott was also asked about the portion of the Policy Manual related to “prisoners requiring special attention,” including EDPs (Ex 1, §3.80). Scott noted that when a prisoner is being escorted, there is paperwork highlighting particular issues involving that person, while that is not the case in regard to detainees (10/5 Tr at 80). The absence of such background information is the reason, Scott explained, that detainees should be handcuffed (id. at 81; see also id. at 165 [everyone issued a summons should be handcuffed, with the cuffs placed behind their back]). On the day in question, Scott said that he was traveling on the Courthouse elevator when the door opened at the seventh floor, and he heard a person yelling and screaming (id. at 87). That person — who turned out to be Ms. Motley — was shouting “arrest me, lock me up, you took my children” (id. at 87). Also present was Officer Solorzano, who was the security desk officer for that floor (id. at 88). Scott began speaking to Ms. Motley, and tried to get her to stop yelling (id. at 90). When she would not, he had her turn around to have her hands cuffed behind her back, which she did voluntarily (id.. at 90-92). Motley initially continued yelling, although she walked with the officers to the elevator, and once she entered the elevator she “calmed down” and became quiet (id. at 92, 97, 106). Among the things she yelled was a threat to blow up the Courthouse6 (id.). Prior to the assault on Ms. Mattaway, no one had characterized Ms. Motley as an EDP, and Scott did not yet consider her to be such (10/5 Tr 85; see also id. at 93 [Scott did not consider Motley an EDP when he handcuffed her]). Scott said he had never before seen this woman, and he had not been told she had been a problem by anyone previously (id. at 175, 178). Moreover, Motley had not attempted to kick anyone while on the seventh floor (id. at 178). Scott’s testimony was inconsistent as to whether Ms. Motley was arrested before she went on the elevator. Initially, he stated that at the time she was handcuffed, she was arrested on the seventh floor, and was thus was under arrest while in the elevator (id. at 92, 113). Subsequently, however, he answered the question of whether she was under arrest at that time in the negative, saying she was “detained to be issued a summons,” and was not arrested until after her assault on Mattaway7 (id. at 146-147; see also id. at 170 ["at no time before the assault was she under arrest"]). The latter scenario is consistent with an Unusual Incident Report authored by Scott about these events and entered into evidence (see Ex 17). The report read in pertinent part as follows: “The above named [Ms. Motley] did yell and scream ‘lock me up bitches, you can’t take my fucking kids’ while standing in the middle of a crowded 7th floor waiting area. The above named…continued to yell and scream profanities, even threatening to blow up the courthouse. The above named was detained while enroute to the first floor operations office when exiting the elevator the above named kicked Assistant District Attorney Mattaway in her groin area and yelled “you fucking bitch.…” (Ex 17). The report listed Officers Solorzano, Riga and DeGracia as witnesses to the incident (id.). In Scott’s account, after Motley was handcuffed, Officer Solorzano called to the officers in the lobby to say that they were bringing someone down (id. at 93). Beyond that, no specific instructions or details were given, although on the basis of the call, Scott believed the lobby would be cleared, by which he meant there would be a path for the officers to walk and the immediate area around the elevator would be free of people8 (id. at 104-106). Scott thought that a third court officer, Officer Charles McClung, also helped bring the detainee to the elevator (id. at 94). Scott further recollected — on the basis of an Unusual Incident Report he had authored — that Officer Riga was also on the elevator (id. at 102). In the elevator, Scott said he and Motley faced the corner, and Motley’s back was to the elevator door (id. at 99, 103). When they arrived at the first floor, Scott “had” Ms. Motley by her handcuffed arms, and then “swung her around to bring her out of the elevator.” (Id. at 116). He believed that McClung walked out first,9 before Scott began to exit with the detainee (id. at 123). Scott stated that he had his left hand on the handcuffs, and his right hand on the detainee’s left arm (id.). No other officer was holding a part of Ms. Motley (id. at 125). Scott recounted that after the elevator doors opened, he turned Motley around (id. at 126-127). He saw other court officers — one of whom he believed was Officer DeGracia — outside the door, but he did not see anyone else there (id. at 127-129, 134). The escorting officers and the detainee then walked out of the elevator (id. at 131). Scott said he continued to have his right arm on Ms. Motley, and believed she was under control (id. at 132). After taking two or three steps, Motley pulled herself towards the floor in a crouch, started yelling the word “bitch,” and then “kicked out” (id. at 132, 134-135). Scott saw her kicking claimant with her right leg, and he pulled her back enough to mitigate the force of the blow (id. at 135, 137). This all happened “real quick,” according to Scott, in the course of five to ten seconds (id. at 137). Scott stated that he never ceased holding on to Motley throughout this time (id. at 181). Lieutenant Scott stated that he first saw Mattaway at the moment of Motley’s kick, and saw no other civilians in the area (id. at 139, 142-143). He said that despite Mattaway’s presence, the area had been cleared, but even after an area is secured there are still “stragglers” who come into it, since it is a public facility (id.). He agreed, though, that it is the role of court officers in such situations to clear a “safe path” for the detainee, and make sure that no one comes into contact with her (id. at 141; see also id. at 173 [anytime a transport is done, area in path of detainee is cleared]). This was because “it’s dangerous for those [individuals] to be within arms’ length or legs’ length of the prisoner” (id. at 171). He acknowledged, moreover, the policy set forth in the Court Officer Manual was that court officers were to “[a]void coming into close proximity to District Attorney, complainant or witnesses when walking a prisoner through a public area,” saying that this was the reason that the area where the detainee is to be taken is cleared (id. at 196; Ex 18). Ms. DeGracia10 testified that she had been a court officer at the Courthouse since 2006, and had served as the officer assigned to the building’s lobby (see October 6 Transcript ["10/6 Tr"] at 6, 8-9). In that capacity, she would sometimes receive notice that a prisoner was being brought down. The notification would not indicate if the prisoner was an EDP, and there were no special procedures for such individuals (id. at 12). When such notice was received, she would stop all employees from entering the area (id. at 9). If she was assigned to the magnetometer, some officers would go to the elevator banks, and try to clear that area, while others would stay behind and make sure no more members of the public would enter (id. at 10-11, 17). She acknowledged that if it was lunchtime or some other “high traffic time,” the entire area as a whole could not be cleared of people, and the officers would attempt instead to clear a path from the elevators to the magnetometer (id. at 10-11, 16). In contrast, during a less busy time, the officers could remove all persons from the area of the elevator bank (id. at 16). In regard to the events of September 21, 2015, DeGracia stated that she was on her lunch hour at the time, and had no connection with Ms. Motley’s detention or escort, or her assault on Ms. Mattaway (id. at 14). Prior to that date, she had never encountered Ms. Motley, nor had she heard from anyone else about Motley being violent (id. at 18-19). Officer John Riga testified that in September 2015, he was a court officer posted to the magnetometers (id. at 22). He presented a different protocol in regard to how individuals who were detained but not arrested should be treated from that described by Lieutenant Scott. Riga stated that an individual who was detained for questioning need not be handcuffed if he or she had not been arrested (id. at 23). He also testified that there were no special protocols or procedures relating to emotionally disturbed persons, except to notify colleagues and supervisors of their presence (id. at 24). In regard to transporting prisoners, Riga testified that the routine was to notify the supervisor that this would be taking place, and then officers would clear an area for transport, which at a minimum should include the immediate area around the prisoner (id. at 25-26). He said, however, that he had never seen an assault or attempted escape by an escorted prisoner (id. at 26). He also averred that he had seen escorted detainees walking uncuffed (id.). Riga testified that his involvement in the events at issue began when he received a radio call on September 21, 2015 while working at the magnetometers, informing him that someone was being brought down to the lobby area (id. at 28). As a result, the court officers stopped processing people through the magnetometers (id. at 34). He then walked over to the lobby area so that he could get a view of the elevator bank (id.). Officer Belmontes was stationed at the security desk, and was stopping employees from entering the security area (id. at 35). Riga stated that the entire elevator area was empty when Mattaway approached (id. at 36). He said that Officer Belmontes told her to stop, but she did not acknowledge the command (id. at 36-37, 40). The witness acknowledged, however, that he did not have Mattaway under “constant observation,” and he kept turning back to look at the individuals waiting in the magnetometer line (id. at 40, 43). He said he could not stop Ms. Mattaway without leaving his post unattended (id. at 45-46). Further, he stated that there was not enough time to remove her by the time the incident happened, which was within “seconds” (id. at 46). Officer Riga observed the assault of claimant, which he described as follows: When the elevator opened, Officer McClung exited first, backing out of the elevator and taking a step to the left, where he put something down (id. at 47-48). McClung then turned around and noticed Ms. Mattaway, who was one or two feet away from him11 (id. at 49-50). He then saw Motley kick at Mattaway from the brink of the elevator, although he did not see her foot make contact with claimant (id. at 51-52). He described Motley as standing straight up at the time of the kick (id. at 52). During the attack, he heard Motley shout the word “bitch” (id. at 66). While there were other officers in the elevator, Riga could not see them at the moment of the attack (id. at 53). He also could not see whether Motley’s hands were cuffed, or whether they were being held by court officers (id. at 53-54). Following the assault, Riga saw Scott holding Motley’s right arm, and Solorzano holding her left arm, both having been in the elevator with her12 (id. at 57, 59). As with the other officers, Riga testified in response to the State’s questioning that he had no knowledge prior to the September 21, 2015 of Ms. Motley being violent in the Courthouse (id. at 62). Officer Solorzano testified that at the time of the incident, he was the court officer in charge of security for the seventh floor of the Courthouse (id. at 74). On the day in question, two other officers were with him on that floor: Officers Belmontes and Harston (id. at 76). At some point that day before the lunch hour, Solorzano heard loud cursing from a woman in one of the public areas on the floor (id. at 79). Solorzano’s efforts to calm her down were unsuccessful (id. at 81-82). He did not conclude from his exchange with her, however, that the woman was emotionally disturbed, stating that she “just appeared to be angry” (id. at 84). He did not perceive her to be a threat (id.). Solorzano’s supervisor, Lieutenant Scott came on the scene, but he was also unable to calm the woman down (id. at 86-87). At some point, another officer came on the scene, and he and Scott escorted the woman to the elevator (id. at 87). Solorzano testified, however, that he did not go into the elevator with them (id. at 88-89). Further, he did not recall if the woman was handcuffed when she went into the elevator (id. at 90). He said that he did not place handcuffs on her personally, and did not believe he saw Scott do so13 (id.). Solorzano indicated that it would have been the responsibility of the escorting officers to have radioed down the information that a detainee was being brought to the lobby, although he acknowledged that he did not see either of them do so (id. at 91). Solorzano said the detainee had been compliant in getting on the elevator (id. at 96). Officer Solorzano testified that he had never seen or heard of the woman who was detained that day before, nor did he have any prior knowledge of her being present on the seventh floor previously (id. at 92). He did not subsequently learn her name (id. at 92). Solorzano stated that the proper procedure whenever individuals were detained was to place them in handcuffs (id. at 75). To transport such an individual from the seventh floor, the procedure was to notify the lobby that they would be coming down with a prisoner, handcuff the individual, and then for two officers to place him or her in the elevator facing the wall (id. at 76). Solorzano would then hold on to the prisoner while they traveled down to the lobby (id.). Officer Charles McClung testified that he had been on the job at the courthouse for seven months at the time of the events at issue (October 20 Transcript ["10/20 Tr"] at 19). His assignment was in a courtroom on the seventh floor of the Courthouse (id. at 21). The incident in question may have been the first time that McClung participated in escorting a detainee (id.). McClung’s involvement with Ms. Motley began when he was walking from the courtroom where he was posted on September 21, 2015, and heard shouting coming from the area of the security desk, where he saw an individual he later learned was Motley (id. at 23-24). He saw Officer Solorzano attempting to calm her down, but without success (id. at 27). His own efforts at calming the situation also did not bear fruit (id. 28). Among the things Motley was shouting was “you took my fucking kids” (id. at 27). Officer McClung said that he recognized Ms. Motley, as she had previously “shouted in the courtroom” in which he was stationed, and she had either walked out or was asked to leave (id. at 24, 74). He described the prior incident as “short-lived” (id. at 76). Later on, he heard officers at the security desk saying they “had a problem with [Motley]” (id. at 26). Nevertheless, he averred that he did not know if she was “ emotionally disturbed,” as he had no information on her background, and just knew she was upset (id. at 40). He stated that the term “EDP” would never be included in a radio call; rather, the officer would provide notification as to whether more assistance or backup was needed (id.). Ultimately, Scott arrived at the scene (id. at 29-30). Motley began yelling and cursing at him, and stated that she would “blow this place up” (id. at 30). Scott cautioned her against using “terrorist-type statements,” and she responded that she did not “give a fuck” (id. at 30-31). She then faced the wall, put her hands behind her back, and asked if the officers wanted to arrest her (id. at 31). Scott cuffed her behind her back (id. at 31-32). McClung testified that at this point she was “detained” and in the custody of the court officers, but not under arrest (id. at 41). He explained that when individuals were detained, they would be brought down to the Operations office, where a decision would be made as to whether they would simply be issued a summons, or would be subject to a “full arrest” (id. at 41). According to McClurg, everyone who is detained is handcuffed behind his or her back (id. at 41-42; see also Tr 77 [placing detainee in rear handcuffs was "policy"]). McClung said that he went with Motley into the elevator, although he was not “per se” escorting her, but accompanied the other officers (id. at 42). Present with him were Scott and another officer who had been in the elevator when the elevator opened, although McClung could not recall who it was14 (id. at 42). Officer Solorzano did not join them on the elevator, however, as he told Scott that he could not leave the seventh floor with no officer (id. at 42). According to McClung, one of the officers then made a call indicating that they would be bringing an individual down (id. at 32). Scott and McClung headed to the elevator (id. at 32). He could not recall who had done the calling, however, and testified that he had not done so himself (id. at 39). During the ride down to the lobby, Motley continued to shout out curses intermittently (id. at 45). It was McClung’s testimony that Scott continued to hold her arm while another officer stood on her other side (id. at 46-47). McClung was stationed in the front of the elevator, and was the first to exit when it reached the lobby, after first seeing that the area in the “immediate vicinity” of the elevator (although not necessarily the bank area as a whole) was “clear” (id. at 44-45, 49-50). At that point, Motley threw herself on the floor of the elevator and began “really shouting and carrying on” (id. at 51). The elevator doors began to close, and so McClung positioned himself to keep them open (id. at 51-52). The other officers attempted to pick up Motley, and “almost had her,” when another woman came in front of Motley and asked what was going on (id. at 52-53). As soon as the officers got Motley to her feet, and while still in the elevator she “lunged her foot” and kicked the woman in front of her (id. at 56-57). McClung said that the woman was only “clipped” by the tip of Motley’s foot (id. at 57). During the assault, Motley screamed: “You took my kids, you fucking bitch” (id. at 59). While this happened, according to McClung, Motley was about a foot away from him, while the woman who was attacked was at a distance of three or four feet (id. at 60-63). While this occurred, the officers had their hands on Motley (id. at 67-68) After the kick, the officers grabbed Motley, and escorted her away to the holding pen (id. at 60), McClung said that the original intent when Motley was brought down was just to give her a summons, but her assault meant that she was to be placed under arrest (id. at 64). McClung recalled having a conversation with another officer later on, who said something to the effect that he remembered prior problems with Ms. Motley, or that he had “seen this woman before”15 (id. at 65). McClung testified that this had something to do with Motley having had “similar outbursts” in the past — not involving kicking, but “shouting” or “problems” (id. at 65-66). Claimant also introduced into evidence a handwritten memo written by McClung on January 16, 2018, long after the incident and during the pendency of this litigation. In that memo, McClung gave the following description of what occurred: “At TPO a woman by the name of Shaquana Motley-Logan was yelling and cursing on the 7th Floor. She even shouted “Lock me up.” My sergeant was called to the floor to assist. Once my sergeant arrived on the floor we proceeded and placed Shaquana Motley into custody. The sergeant by the name of Phil Scott placed hand cuffs on her. Myself and fellow officers then cleared an elevator to transport her to the holding cells in the operations office to issue her a summons. Once the elevator hit the ground floor Shaquana Motley while in custody dropped to the floor while she was being held. As the elevator doors opened and she dropped to the elevator floor she was screaming and cursing loud. As soon as she was picked up from the floor an ADA stopped in front of the elevator and asked “What’s going on here?” At that point Shaquana Motley kicked the ADA in what appeared to be the crotch area. We then proceeded to take Shaquana Motley to the holding pins [sic]” (Ex 4). On questioning by the State, McClung agreed that he had never had reason to arrest Motley previously, nor had he seen her kick anyone before (id. at 69). He also stated that she had not kicked anyone on the seventh floor, she was compliant at the time of her detention, and no one had previously told him that Motley was a violent person (id. at 69-71). The final witness was Officer Clayton Belmontes, who was part of the Courthouse “lobby crew” on the date of the incident (November 8 Transcript ["Tr 11/8"] at 8). While Belmontes spends most of his work outside on the Courthouse perimeter, he enters the building for his lunch break each day at 1:00 p.m. (id.). Belmontes was asked about various court officer practices. Among other things, he explained that when the officers are escorting someone through the building, their goal is to limit contact with the public as much as possible (id. at 15). At least two officers must participate in the transport, and will try to use three when they are available (id. at 16-17). Those officers give verbal commands to the public to clear a path (id. at 17). Officer Belmontes had no recollection of the September 21, 2015 incident involving Ms. Mattaway (id. at 20). Discussion I. Spoliation Before addressing the merits of the claimant’s cause of action, I must first consider her allegation that defendant has spoliated evidence, specifically certain officers’ handwritten notes.16 Claimant seeks as a remedy the striking of defendant’s answer, or in the alternative some lesser sanction. Claimant’s argument is based on the failure of two correction officers to maintain (and defendant’s concomitant failure to disclose) their notes of the incident. Specifically, at trial Lieutenant Scott testified in regard to the Unusual Occurrence Report introduced as Exhibit 17, that he would typically prepare such a report in handwritten form before entering it into the computer (10/5 Tr 153). He said that he would maintain such handwritten documents in a folder, but “lost track” of that folder when he was transferred to New Rochelle in May 2019 (id. at 153-154). Scott stated he had never searched for the folder in the context of this case, nor had he been asked to do so — although he later stated that he did not recall whether such a request had been made (id. at 153-154). On cross-examination, Scott said that he “technically” did not have to write the report on paper first, but could have just typed it in as a “firsthand witness” (id. at 177). The second officer at issue in the motion was McClung, who testified that it was his practice to take handwritten notes of events (10/20 Tr 7). He did not recall the specifics of what he wrote, but remembered “jotting down like part of the basic pedigree information, like the person’s name” (id. at 8). As a matter of practice, he would then typically bring the notes to the Operations office for use in compiling the Unusual Occurrence Report (id.). He would prepare a “more professional” handwritten narrative which was given to Scott to be “typed into” the report (id. at 11, 15-16). McClung said he would typically store such notes in his locker or courtroom, but does not know what happened to them in this instance (id. at 12, 14). At the time of the event, he gave his write-up to Lieutenant Scott, whom he believed typed them into the Unusual Occurrence Report (id. at 13). McClung initially did not remember whether he used the notes in preparing his 2018 report, entered into evidence — and later said he had prepared it from memory (id. at 12, 18). He said that someone from the Office of the Attorney General requested that he provide such documents, at the time he was asked to prepare the 2018 statement (id. at 16-18). On this basis, claimant argues that defendant destroyed relevant documents (i.e., the written notes) after it knew it had a duty to maintain them, and that the answer should be struck as a consequence (see Claimant’s Trial Memorandum of Law in support of her Motion for Discovery Sanctions ["Cl Sanctions Mem"] at 6). The Court of Appeals’ most comprehensive summary of the principles governing spoliation sanctions came in Pegasus Aviation I, Inc. v. Varig Logistica S.A. (26 NY3d 543 [2015]). In that case, the Court summarized the legal standard as follows: “A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense. Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed. On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party’s claim or defense” (id. at 547 [citations and internal quotation marks omitted]). The burden of proving the relevant state of mind, and prejudice, is on the party seeking spoliation sanctions (see Lentini v. Weschler, 120 AD3d 1200, 1201 [2d Dept 2014]). Applying these standards to the facts of this case reveals a number of problems with claimant’s argument. First, claimant never sought such notes in its discovery demands.17 Second, while there is some testimony by Scott that he kept his notes until the litigation was commenced, there is no clear indication of such by McClung, who said that he did not know whether he maintained his handwritten papers regarding this case after they were incorporated in the Unusual Occurrence Report (see supra p 17). Since there was no indication that McClung disposed of the notes at a time he had reason to believe they would be relevant to a lawsuit or he otherwise had a legal obligation to maintain them, claimant cannot show that they were destroyed with the requisite state of mind (see Burch v. New York City Hous. Auth., 72 AD3d 551, 551 [1st Dept 2010] [disposal of notes not spoliation where there was "no evidence that defendant intentionally or negligently disposed of the notes with knowledge of their evidentiary value to plaintiff or plaintiff's claimed need for them"]). Further, since there is no proof that either officer destroyed their notes intentionally, claimant must establish their relevance. Yet the record reveals no basis for finding that these notes would have any information beyond what is already contained in the Unusual Occurrence Report, or otherwise would have provided any support to claimant’s cause of action. Both Scott and McClung testified that their notes were merely a draft of what was to go in the report, and McClung also included “pedigree information” (such as names) regarding those involved. Claimant has all the relevant reports, had the opportunity to depose these officers, and has not provided any basis to conclude that the notes would have revealed anything beyond what is already in evidence. The assertion that claimant’s case was prejudiced by the failure to produce these notes is therefore entirely speculative (see Duluc v. AC & L Food Corp., 119 AD3d 450, 453 [1st Dept 2014], lv denied 24 NY3d 908 [2014] [argument that "unpreserved tapes might potentially have shown a condition that caused plaintiff's fall" is "mere speculation" and "does not meet plaintiff's burden to show that defendant improperly destroyed" those tapes]; see also Herbert v. City of New York, 12 AD3d 209, 210 [1st Dept 2004] [no prejudice from destruction of original photographs where plaintiff had not "established that the unavailability of the original photographs or color copies thereof will impair his ability to present his case"]). Claimant also argues that the failure to preserve and turn over these notes was part of a pattern, which also included the absence of any videotapes of the accident and the State’s failure to disclose and turn over certain training materials until just before trial (Cl Sanctions Mem 1-2). But since neither of these points provides any basis for spoliation sanctions, they do not bolster claimant’s argument. The only testimony at trial regarding the videotaping of the lobby was that there were cameras present at that location (11/8 Tr 27, 37-42). No evidence has been submitted regarding if, how and when these cameras recorded what took place; what area they cover; whether those tapes were preserved; and if so, for how long. Absent any such proof, the record is devoid of evidence that defendant engaged in any wrongful conduct in regard to any recording, and the mere absence of a videotape covering the incident does not move the needle on claimant’s spoliation claim (see Cuevas v. 1738 Assoc., LLC, 96 AD3d 637, 638 [1st Dept 2012] [there was "reasonable basis" for denial of spoliation sanctions for loss or destruction of surveillance videos that "supposedly recorded [plaintiff's] slip and fall on a wet substance in the building vestibule,” when there was a “lack of concrete evidence that the accident was even recorded in the first place” and plaintiff was “still able to pursue her claim” through other evidence]). Nor does the fact that some training materials responsive to claimant’s requests — but which did not specifically discuss this case — were produced shortly before trial, after their existence was revealed in a deposition. Claimant received all relevant information in this regard; introduced these documents as exhibits at trial; and had the chance to question witnesses about them. Under these circumstances, there was no prejudice to claimant from any late production, and it adds no additional grounds for sanctions (see Kinge v. State of New York, 302 AD2d 667, 670 [3d Dept 2003] [upholding court's decision not to sanction State for "extensive delay" in providing requested documents where, inter alia, there was no evidence of wilful conduct or prejudice]). Since such conduct was not sanctionable, I cannot find it part of a “pattern” of misconduct which somehow adds to the case for imposition of sanction for other alleged misconduct. Accordingly, I will not impose any sanction under CPLR 3126, and proceed to consider the evidentiary record before me. II. Findings of Fact As is not uncommon in cases concerning events long ago, and where the litigation centers on a very brief, traumatic event, there are conflicting recollections between the various witnesses that gave testimony at trial as to what occurred, to wit: Mattaway testified that Motley was not handcuffed at the time of the assault. Scott and McClung testified that she had been placed in handcuffs. Solorzano said he did not handcuff Motley, and does not believe he saw Scott do so. Mattaway testified that the elevator bank area was filled with people at the time of the assault. Riga testified that the area had been cleared, and Belmontes sought to warn Mattaway against approaching the elevators. McClung testified that Solorzano had called to the officers in the lobby to alert them. For his part, Solorzano said that the escorting officers (and not him) would have been responsible for notifying the lobby but he did not see them do so. McClung said that he did not call down to the lobby, although he believed someone did. Mattaway testified that the officers were not holding Ms. Motley when the elevator opened. Scott stated that he had both hands on Motley, while Riga said that both Scott and Solorzano were holding her — although Solorzano denied he had escorted Motley to the lobby. McClung also stated that the officers had their hands on Motley. The officers differed in their testimony as to who had escorted Motley. Scott remembered that he, Solorzano, McClung and Riga were present. Solorzano denied he had been on the elevator, but rather said he remained on the seventh floor. McClung said that he and Scott were present, but not Solorzano. Although, for reasons set forth below, I need not resolve these issues to make a finding on liability, so that the record is complete, I find the following: The preponderance of the evidence shows that Motley was handcuffed at the time of the incident. That is recorded in a contemporaneous report, two of the officers who escorted her specifically testified to such, and that testimony was consistent with what the officers (except Riga) stated was standard policy. The only evidence directly contradicting their recollections was Mattaway’s testimony, based on what she saw during a split second, traumatic event. Finally, the fact that Motley attacked Mattaway by kicking her is consistent with her hands being cuffed. As to the actions taken to clear the lobby, the overall tenor of the testimony is that some effort was made in this direction, but such efforts were at best incomplete. The most direct contradiction is between claimant’s testimony — that there was a large crowd of people in the elevator bank — and that of Officer Riga, who said the area had been cleared completely. Other officers, however, noted the impossibility of clearing the area fully at lunchtime, and the testimony that notification had been provided to the lobby officers was uncertain and contradictory, and could only have come a few moments before Motley’s arrival. Finally, since Mattaway came from inside the building’s security, it is not surprising that she would have been able to reach the elevator bank without having been stopped. In sum, while it appears some efforts were made to keep people from the area around the elevators, there were individuals who got through, and the efforts made to cordon off the area were limited. Finally, in regard to the manner in which Motley was guarded, I see no reason to disbelieve the testimony of Scott and McClung that at least one officer (Scott) had his hands on her, although it is not clear that she was being held tightly. With these findings in mind, I proceed to consider the nature of the State’s legal duty in this instance, and whether claimant has established any violation thereof. III. Governmental Immunity The State contends its actions in this case are protected by governmental immunity. The initial question in applying the governmental immunity doctrine is whether the governmental entity at issue was acting in a governmental or proprietary capacity (see Applewhite v. Accuhealth, Inc., 21 NY3d 420, 425 [2013 [citations omitted]). In determining the capacity in which defendant was acting, the focus is on “the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred” (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 447 [2011] [citation omitted]). Proprietary activities are those which “essentially substitute for or supplement traditionally private enterprises.” (Applewhite, 21 NY3d at 425) “[P]urely governmental functions,” on the other hand, include those “undertaken for the protection and safety of the public pursuant to the general police powers” (Sebastian v. State of New York, 93 NY2d 790 [1999]). This includes “provision of security against attacks from third parties” (see Marilyn S. v. City of New York, 134 AD2d 583, 585 [2d Dept 1987], affd 73 NY2d 910 [1989]). The actions at issue in this case — the conduct of security personnel in a government facility, providing security and escorting an individual from the building so that she may be given a summons — are about as “quintessential[ly] governmental” as it gets (see Turturro v. City of New York, 28 NY3d 469, 479 [2016] ["[p]olice…protection…[is] a long-recognized, quintessential governmental function[]“] [citation omitted]; Scozzafava v. State of New York, 174 AD3d 1109 [3d Dept 2019] ["acts undertaken for the protection and safety of the public pursuant to the general police powers" are part of a "quintessential governmental function"]). As a result, the State is immune unless “the injured person establishes a special relationship with the [governmental] entity, which would create a specific duty to protect that individual, and the individual relied on the performance of that duty” (see Miller v. State of New York, 62 NY2d 506, 510 [1984]; accord Salone v. Town of Hempstead, 91 AD3d 746, 746 [2d Dept 2012]; McEnaney v. State of New York, 267 AD2d 748, 749 [3d Dept 1999]). A special duty may arise in one of three ways: “(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation’ ” (McLean v. City of New York, 12 NY3d 194, 199 [2009][citations omitted]). Claimant has the burden to establish that this test has been met (see Pelaez v. Seide, 2 NY3d 186, 199 [2004]). The first prong is clearly inapplicable here, as claimant points to no statutory duty governing the conduct of the corrections officers. Language from their training manual does not suffice, since the relevant duty must not merely govern government conduct, but create a private right of action (see McLean, 12 NY3d at 200; Rennix v. Jackson, 152 AD3d 551, 553 [2d Dept 2017]). Nor was there a voluntary assumption of a duty generating justifiable reliance. To establish a special relationship under this prong, claimant must show: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking” (Applewhite, 21 NY2d at 430-431; Normanskill Cr., LLC v. Town of Bethlehem, 160 AD3d 1249, 1251 [3d Dept 2018]). The first and third elements, which require contact between the State employees and claimant, and resulting reliance, simply are not present here. Finally, there was no “known, blatant and dangerous safety violation” present in this case when the court officers took custody of Motley. As explained in greater detail below, prior to her assault on Mattaway, Motley was loud and creating a disturbance, but there was no basis for the officers to believe that she posed a danger to bystanders, much less a “known” and “blatant” one. Since claimant has failed to establish a special duty, Mattaway’s claim is barred by governmental immunity (see Jones v. New York City Tr. Auth., 183 AD2d 658, 659 [1st Dept 1992] ["absent a special relationship, a municipality may not be held liable for failure to provide police protection to an individual, since its duty is ordinarily owed to the public at large, and not to a specific person"]). Claimant nevertheless argues that governmental immunity does not apply since none of the court officers’ actions involved an exercise of discretion, as “there is no discretion when detaining someone: unless they are pregnant, they must be cuffed”18 (Claimant’s Post-Trial Brief ["Cl Br"] 9). Similarly, claimant maintains, that there was no discretion involved in failing to clear a path for a detainee in public areas, and to maintain the detainee under continuous observation and control (id.). As a result, claimant maintains that the governmental actions here were ministerial, and therefore not subject to immunity (id. at 10-11). Putting aside the court’s factual findings contradicting some of these assertions, the argument still does not hold water. Claimant is correct that while governmental immunity bars any action challenging government officials’ discretionary acts (see Valdez v. City of New York, 18 NY3d 69, 76 [2011], that rule does not apply where the officials never exercise their discretion (see Trimble v. City of Albany, 144 AD3d 1484, 1487 [3d Dept 2016], citing Valdez, 18 NY3d at 79). But a court will not reach this issue when the exercise of a governmental function is challenged, until it first finds a special relationship giving rise to a duty of care (see id. at 1487 [first finding question of fact on issue of special relationship before proceeding to consider exercise of discretion]). Since no such relationship was established here, I find the action must be dismissed without reading the question of whether defendant exercised its discretion.19 Finally, in addition to the barrier created by governmental immunity, the claim cannot succeed, since claimant has not proven the elements of a negligence cause of action. IV. Negligence as Landowner As noted above, the State was sued in this case for actions undertaken in its governmental capacity. But even assuming that it is subject to suit for ordinary negligence, claimant has not proven such a cause of action.20 The scope of the State’s duty in safeguarding the Courthouse is “defined by past experience and the likelihood of conduct on the part of third persons…which is likely to endanger the safety of visitors” (Maheshwari v. City of New York, 2 NY3d 288, 294 [2004] [citations and quotation marks omitted]). The State is thus only liable for an assault at the courthouse to the extent it was foreseeable (see Millan v. AMF Bowling Ctrs., Inc., 38 AD3d 860. 861 [2d Dept 2007] [assault not foreseeable when it happened "suddenly and without warning"]). Since the acts of a third person caused claimant’s injury, “liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence” (Maheshwari, 2 NY3d at 295). Here, there was no evidence of any prior incidents of violence involving Ms. Motley (cf. Stora v. City of New York, 117 AD3d 557, 558 [issue of fact as to liability of agency running shelter for outside attack where it was on notice that weapons were being smuggled in, and individuals were jumping its fence]). While claimant makes sweeping characterizations of Ms. Motley’s conduct (e.g. Cl Br 2 [Motley was a "bomb threat making, disorderly, emotionally disturbed prisoner with known prior incidents"], the only acts that arguably placed the officers on notice of her violent propensities were: (1) her disruptive conduct on the 7th floor and in the elevator; (2) McClung’s knowledge that on one prior occasion she had been previously kicked out of a courtroom; and (3) her statement that she would “blow up” the building. But the disruptive conduct reflected by (1) and (2) involved nothing more than yelling, and all the officers understood the statement reflected by (3) to be hyperbole.21 In any event, there was no evidence that the officers had any indication that she might engage in violence, much less than she might attack some unrelated person. Claimant argues correctly that the “precise manner in which the assault occurred,” or the precise harm or victim “need not be foreseeable” (Cl Br 12). The problem is that here, there is no evidence of any notice of any propensity to violent actions by Motley at all before her assault, much less that she might attack a random individual in the courthouse. Evidence that she was angry, loud, and disruptive simply does not suffice. Rather, her sudden kicking of a random individual in the courthouse was “extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct” (Maheshwari, 2 NY3d at 295). Therefore, the State had no notice that an assault by Motley was likely to occur, and her actions severed any causal connection between defendant’s conduct and claimant’s injuries. Accordingly, verdict is rendered for defendant, and Claim no. 131831 is dismissed. Let Judgment be entered accordingly. Dated: July 21, 2022
