DECISION This Court, having presided over the instant trial on December 20, 2022, heard the testifying witnesses, read the pending motion, examined the pleadings and exhibits in evidence, and listened to the arguments raised during trial, hereby makes these findings of fact and reaches the following conclusions of law. By Verified Claim filed on October 18, 2021, Claimant Bernard Patterson (hereinafter “Claimant”), an incarcerated person currently housed at Five Points Correctional Facility, commenced the instant action against Defendant State of New York (hereinafter “State”), seeking damages for personal injuries allegedly inflicted upon him by the excessive use of force, assault and battery by correction officers employed by the New York State Department of Corrections and Community Supervision (hereinafter “DOCCS”) at the Sullivan Correctional Facility (hereinafter “Sullivan”) in Fallsburg. Particularly, Claimant alleges that on April 30, 2021 at approximately 9:45 p.m., while at Sullivan’s infirmary, he was trying to get his coat when, without provocation, correction officers punched him in the face with their keys, sprayed him in the face with pepper spray, and repeatedly assaulted him and hit him about the face and the back of his head (Claim at 1-2, 3, 4). “Claimant was then taken to be seen by a nurse who[] determined that [he] needed stitches to close the wound in his eyebrow [and] was then rushed to an outside hospital, where he received six stitches in his eyebrow” (id. at 2, 5). The Claim seeks recovery in the sum of $10,000 for the intentional torts of assault and battery (id. at 4). The medical records reveal that, after the incident, Claimant suffered a two-inch long “right eyebrow laceration, 1/4″ wide by 1/4″ deep,” which was “cleansed with NS, Bacitracin applied, steri[le]-strips applied. Covered with dry dressing” (M-98485 Affirmation in Response, Unusual Incident Report, Use of Force Report, Exh. C). After refusing use of force photographs, Claimant was transported to Garnet Health Care Center where he received “five stitches” for his eyebrow laceration (id.). Upon his return to the Facility, Claimant was admitted to the Mental Health Unit (“MHU”) where he was kept under keeplock for several days apparently pending the disposition of his disciplinary hearing (id.). On May 12, 2021, Claimant was found guilty after a Tier II disciplinary hearing of creating a disturbance, refusing a direct order and engaging in violent conduct at the Correctional Facility. He was sanctioned by losing certain privileges and was imposed 15 days of solitary confinement at the Special Housing Unit (“SHU”). He filed an appeal of the Tier II Hearing decision claiming, inter alia, that he is hearing impaired with two hearing aids and did not hear or respond to the direct orders by the officer, who attacked him unprovokedly (M-98485 Motion for Summary Judgement, Exh. E). On May 13, 2021, the DOCCS Superintendent modified the determination, dismissing the charge of refusing a direct order, but upholding the other charges and “no change to sanctions” (id.). The instant Claim ensued. By Verified Answer dated November 17, 2021, the State denied the allegations raised by Claimant in the Claim, and interposed six Affirmative Defenses, including that the State agents and employees are immune from liability to Claimant because they “took actions which were privileged as being discretionary determinations made…within the scope of their duties as public officials,” and that Claimant was culpable, contributorily negligent and/or assumed the risk in causing his injuries (Verified Answer at 2,
