                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: October 16, 2014                     517699
________________________________

SAMUEL SAUNDERS,
                      Appellant-
                      Respondent,
     v                                        MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent-
                    Appellant.
________________________________


Calendar Date:   September 2, 2014

Before:   Lahtinen, J.P., Stein, McCarthy, Rose and Devine, JJ.

                               __________


      Law Office of Robert Dembia, PC, New York City (Robert
Dembia of counsel), for appellant-respondent.

      Eric T. Schneiderman, Attorney General, Albany (Paul
Groenwegen of counsel), for respondent-appellant.

                               __________


Devine, J.

      Cross appeals from a judgment of the Court of Claims
(DeBow, J.), entered February 7, 2013, upon a decision of the
court following a trial partially in favor of claimant.

      As he was giving inmates their cell assignments, correction
officer Kory Copeland ordered claimant to proceed to a cell
located on the second floor of the correctional facility, which
order claimant protested, asserting that he had been issued a
"flats order" that required him to remain housed on the first
floor of the facility due to certain health problems. Claimant
continued to argue with Copeland about the cell assignment and a
physical altercation ensued, during which claimant sustained
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numerous injuries, including, among other things, a fractured
humerus and cheekbone, broken ribs and a heart attack, which
required medical treatment at two hospitals and an extensive stay
in the correctional facility's infirmary.

      Claimant filed a notice of claim alleging that Copeland's
excessive use of force caused serious personal injuries.
Following a four-day nonjury trial, the Court of Claims concluded
that Copeland's use of force was reasonable and necessary to
restrain claimant, thereby eliminating any liability on the part
of defendant with regard to the majority of claimant's injuries.
However, the court found that claimant's fractured right humerus
was "unexplained" by the use of reasonable force and rendered a
partial judgment in claimant's favor as to that particular injury
and awarded $80,000 in damages. Claimant now appeals, insisting,
among other things, that the record establishes defendant's
liability for all of his injuries and that the sum awarded by the
court is inadequate. Defendant cross-appeals, asserting that,
inasmuch as the Court of Claims correctly found that the force
used to restrain claimant was necessary and reasonable, it erred
in holding defendant liable for claimant's fractured humerus.

      In our review of a verdict issued by a court following a
nonjury trial, we make an independent evaluation of the weight of
the evidence and, in conjunction with any reasonable inferences
that may be drawn therefrom, grant an appropriate judgment (see
Reynolds v State of New York, 95 AD3d 1464, 1464 [2012]; Shon v
State of New York, 75 AD3d 1035, 1036 [2010]; Gonzalez v State of
New York, 60 AD3d 1193, 1194 [2009], lv denied 13 NY3d 712
[2009]). Furthermore, this Court will give considerable
deference to the trial court's findings of fact where "such
findings are based largely upon credibility determinations"
(Martin v State of New York, 39 AD3d 905, 907 [2007], lv denied 9
NY3d 804 [2007]; see Shon v State of New York, 75 AD3d at 1036).
In that vein, we find that the Court of Claims' determination
that the use of force to gain control over claimant was warranted
and was executed in a reasonable manner has sound support in the
record (see Shirvanion v State of New York, 64 AD3d 1113, 1114
[2009]; Bush v State of New York, 57 AD3d 1066, 1067 [2008]).
Claimant testified that, when he informed Copeland that he had
been issued a "flats order" and that he could not climb stairs,
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Copeland became enraged and threatened to drag claimant up the
stairs if he did not comply with his order. Claimant averred
that when he failed to ascend the stairs, Copeland punched him in
the face while grasping a baton, causing claimant to be "knocked
out." The fracas triggered an internal security alarm and,
according to claimant's testimony, he heard an "army" of
correction officers descend upon him, who then kicked him "from
one corner to the other corner" of the room. On cross-
examination, however, claimant stated that, when he was being
kicked by the officers, he remained at the base of the staircase.
Claimant's trial testimony differed from his examination before
trial testimony, wherein he stated that Copeland had forcefully
grabbed him and attempted to drag him up the stairs and struck
him after claimant refused his orders and, alternatively, that
Copeland first struck him in the face and then pulled him up the
stairs. Upon further cross-examination, claimant insisted that
he made no attempt to resist Copeland's efforts to push or pull
him up the stairs or otherwise assault him, recalling that he
tried to hold onto the stairway railing and was "terrified that
[he] was going to be pulled and go tumbling down the stairs" and
could not recall who was pulling him on the stairs.

      At trial Copeland testified that claimant refused to obey
the initial order to report to his assigned cell and, after being
given a second order to "lock in," claimant began to ascend the
stairs and then, suddenly, grabbed the railing and kicked
backward with his right leg, striking Copeland's right knee.1
Responsively, Copeland stated that he grabbed claimant's upper
back and tried to push him off the stairs and against a nearby
wall, but because claimant continually resisted, they were
propelled away from the wall, "did a 180" degree turn and
stumbled onto the top of a desk. Copeland further recalled that
claimant continued to kick and flail about and, although Copeland
tried to force claimant to the floor, they were instead diverted
towards a console, where claimant's face struck metal bars and


    1
        Copeland testified that he was following claimant to his
assigned cell in order to implement "keep lock status," a prison
disciplinary measure that Copeland chose to apply in response to
claimant's refusal to follow his initial direct order.
                              -4-                517699

then, finally, claimant fell to the floor where Copeland was able
to place claimant's arms into wrist restraints. Copeland denied
that he or other officers struck or kicked claimant and, although
he did not know if other officers observed the altercation, he
later discovered that another correction officer, Robert Sweet,
had heard yelling, ran to the scene and activated his alarm for
assistance. Copeland indicated that, as he attempted to place
claimant's arms into restraints, he had to apply a great deal of
force as claimant refused to relent and continued to struggle
with him. Having reviewed the evidence and deferred to the
credibility determinations of the Court of Claims, we ultimately
concur with that court's finding that the force used to restrain
claimant was both necessary and reasonable (see Barnes v State of
New York, 89 AD3d 1382, 1383 [2011], lv dismissed 19 NY3d 949
[2012]; Bush v State of New York, 57 AD3d at 1067).

      We differ, however, with the Court of Claims' conclusion
that claimant's fractured right humerus was the result of an
excessive use of force applied after claimant was restrained and,
on that basis, we now reverse that part of the court's judgment
(see Green v State of New York, 71 AD3d 1310, 1311-1312 [2010];
Muller v State of New York, 240 AD2d 881, 882 [1997]).
Claimant's expert, pathologist Jeffrey Hubbard, testified that
claimant had sustained a comminuted fracture to the right
humerus, which occurs when direct pressure is applied by an
external fixed object to the bone, such as the leg of a table or,
alternatively, a moving object, such as a baseball bat or being
kicked, but that he would not expect the force used to place
claimant's arms in wrist restraints to have caused such an
injury. However, at no point during his testimony did Hubbard
indicate that his review of claimant's injuries and medical
records caused him to find that they were due to the use of
excessive and unreasonable force (see Davis v State of New York,
203 AD2d 234, 234 [1994]). Defendant's expert, David Karandy,
who was claimant's treating physician at the prison, opined that
the injuries likely resulted from impact of the altercation and,
further, that claimant's osteoporotic condition rendered him more
susceptible to a bone fracture. Nor is there any evidence
demonstrating, as the Court of Claims found, that claimant's
humerus fracture occurred "after he was restrained in handcuffs."
The court credited Copeland's testimony that he did not hear or
                              -5-                  517699

discern any fracture to claimant's arm during the altercation or
while he was placing claimant into handcuffs. It also credited
Hubbard's assessment that the injury was likely not the result of
placing claimant's arms into restraints but, rather, that such a
fracture is normally attributed to the application of external
force against the bone. The court then theorized, in conjunction
with video images taken from the prison infirmary in which
claimant appears to be demonstrably pained while moving his right
arm, that some form of impact to claimant's arm after he was
handcuffed must have caused the injury. We do not find, however,
that any fair interpretation of the record evidence allows for
such a conclusion (see Shirvanion v State of New York, 64 AD3d at
1114; Stein v State of New York, 53 AD2d 988, 988 [1976]).
Therefore, the claim against defendant must be dismissed in its
entirety. In light of the instant disposition, the parties'
remaining contentions have been rendered academic.


     Lahtinen, J.P., Stein, McCarthy and Rose, JJ., concur.



      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as partially granted
claimant's claim; claim dismissed in its entirety; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
