        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

997
CA 09-01214
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, SCONIERS, AND GORSKI, JJ.


JESSIE J. BARNES, CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

THE STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 100753.)


JESSIE J. BARNES, CLAIMANT-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATHLEEN M. TREASURE
OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Court of Claims (Jeremiah J.
Moriarty, III, J.), entered May 28, 2009. The judgment dismissed the
amended claim.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimant commenced this action seeking damages for
injuries he allegedly sustained during an altercation with correction
officers while he was an inmate at the Collins Correctional Facility
(facility). According to claimant, he also received inadequate
medical treatment for his injuries from a nurse at the facility.
Following a trial, the Court of Claims granted judgment in favor of
defendant. We affirm.

     We reject the contention of claimant that the court failed to
impose an appropriate sanction for defendant’s failure to preserve and
produce the original videotapes of the incident, which was recorded by
two surveillance cameras in the facility. Although defendant provided
claimant with a single videotape that contained copies of the two
original videotapes prior to trial, the court ordered defendant to
produce the originals at trial so that they could be compared to the
single copy. Defendant failed to do so, explaining that the original
videotapes had been lost. The court therefore precluded defendant
from admitting in evidence the copy of the videotapes, which was
favorable to defendant. We conclude that, in the absence of evidence
that defendant intentionally destroyed the original videotapes or that
the copy omitted relevant portions of the incident, preclusion was an
appropriate sanction (see Hulett v Niagara Mohawk Power Corp., 1 AD3d
999, 1002), and the court’s ruling did not constitute an abuse of
discretion (see generally Iannucci v Rose, 8 AD3d 437). We reject
claimant’s further contention that the court should have struck
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                                                         CA 09-01214

defendant’s answer as a spoliation sanction. “ ‘[S]triking a pleading
is a drastic sanction to impose in the absence of willful or
contumacious conduct’ ” (Carroway Luxury Homes, LLC v Integra Supply
Corp., 52 AD3d 1187, 1188), and such a sanction was not warranted here
(see Koehler v Midtown Athletic Club, LLP, 55 AD3d 1444).

     We reject claimant’s further contention that the verdict is
against the weight of the evidence. With respect to the medical
malpractice claim, claimant failed to present evidence establishing
that the medical treatment provided to him following the incident
constituted a departure from accepted medical practice. With respect
to the claim based upon the use of excessive force, all of the
correction officers involved in the incident testified that the level
of force used was appropriate to the situation, and claimant’s
contention to the contrary is belied by the evidence establishing that
he received only minor injuries. Indeed, claimant sustained no cuts,
bruises or fractured bones, and the only injuries observed by a nurse
following the incident were a scrape to his cheek and marks on his
wrists and ankles, in the approximate locations where claimant had
been wearing arm and leg restraints. “The court’s findings are
entitled to great deference, [inasmuch] as the court was in a position
to observe the witnesses and view the evidence firsthand” (Garofalo v
State of New York, 17 AD3d 1109, 1110, lv denied 5 NY3d 707), and we
conclude that the verdict is supported by a fair interpretation of the
evidence (see id.).




Entered:   November 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
