New York State Court of Claims

New York State Court of Claims

RHODES v. THE STATE OF NEW YORK, #2000-004-529, Claim No. 94100, Motion No. M-61333


Inmate on inmate assault issue of fact - deny State's motion for summary judgment.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 8, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The State moves for summary judgment pursuant to CPLR § 3212.

The papers considered by the Court:

Verified Claim, filed May 28, 1996 1

Verified Answer, filed June 26, 1996 2

Memorandum-Decision and Order Rhodes v State

of New York, Claim No. 94100, Motion No. M-54023,

Cross-Motion No. CM-54077, Hanifin, J., filed
January 22, 1997 3

Rhodes v State of New York, 245 AD2d 791, entered
December 11, 1997 4

Notice of Motion No. M-61333, filed March 13, 2000 5

Affidavit of James E. Shoemaker, AAG, in support of motion,
sworn to March 8, 2000 6

Memorandum of Law, in support of motion, dated March 8,
2000 with attached exhibits 7

Affirmation of Ira M. Thomas, Esq., in opposition to motion,
dated April 19, 2000 8

Memorandum of Law, in opposition to motion, dated April 19, 2000 9

"AFFIRMATION" of Tony A. Rhodes, in opposition to motion,
sworn to May 19, 2000 10

The Claim recites in pertinent part:

9. On November 6, 1995, claimant was an inmate at the Woodbourne Correctional Facility (hereinafter, "the facility").


14. On November 6, 1995, at approximately 10:20 pm, Claimant was in the E3 recreation area of the facility.


17. At the aforementioned date and location, the plaintiff [sic] was stabbed during a fight between other inmates.


19. At the aforementioned date and location, the defendant was responsible for maintaining security in the E3 recreation area at the facility.

20. Upon information and belief, at all times herein mentioned, weapons were contraband at the facility.

21. Upon information and belief, at all times herein mentioned, the defendant had rules and regulations forbidding the possession of weapons by inmates.

22. Upon information and belief, at all times herein mentioned, the defendant had authority to conduct searches of the persons and/or property and/or living quarters of inmates.

23. Upon information and belief, at all times herein mentioned, the defendant had rules and regulations requiring inmates to submit to search of their persons and/or property at the direction of the defendant.

24. Upon information and belief, at all times herein mentioned, defendant from time to time conducted searches of the persons and/or property and/or living quarters of inmates.

25. Upon information and belief, at all times herein mentioned, the defendant had a fixed post in the vicinity of the E3 recreation area.

26. Upon information and belief, at the time of the stabbing, there was a Corrections Officer assigned [sic] the E3 recreation area.


29. At the time of the stabbing the Corrections Officer assigned to the E3 recreation area post was absent from the post without leave from anyone entitled to grant it.

30. At the time of the stabbing the Corrections Officer assigned to the E3 recreation area post was playing cards.


32. Upon information and belief, at all times herein mentioned, some of the prisoners in the E3 recreation area were known by the defendant to haver [sic] violent propensities.

33. The foregoing incident was caused and/or permitted by and through the negligence of the defendant, by its servants agents and/or employees in failing properly and/or adequately to supervise the inmates at the facility; in failing properly and/or adequately to supervise the E3 recreation failing to conduct adequate and/or sufficiently numerous searches for contraband weapons; in violating and/or failing to comply with Sections 70, 112 and 137 of the Correction Law and regulations of the failing to act with sufficient speed to protect the failing to make special provision for the custody and/or segregation of other inmates involved known to be failing to anticipate a fight in the circumstances then there creating a dangerous situation; in failing to supervise and/or adequately supervise its personnel....

(Paper No. 1)

Before launching into a discussion of the subject motion, it will be helpful to review the background of this Claim.

In a Memorandum-Decision and Order filed January 22, 1997 (Paper No. 3) this Court, on Motion by the State, dismissed this Claim because in this Court's view, "The Notice of Intention served by the Claimant did not provide the State with fair notice" (Id., at p 4), thus making it a nullity, and making the filed Claim untimely. This Court also denied the Claimant's Cross-Motion for permission to late file due to lack of an appearance of merit (Id., at p 17). On appeal, the Appellate Division deemed the Notice of Intention sufficient, with the result that the Claim was timely filed. (Paper No. 4) Having deemed the Claim timely filed, the Appellate Division did not address the Court's denial of permission to late file the Claim.

In support of the motion, State's counsel avers in pertinent part:
5. Claimant alleges that he was assaulted on November 6, 1995 in the E-3 recreation area which is located at Woodbourne Correctional Facility.

6. Claimant admits that prior to the assault that he had no reason to believe that he would be attacked.

7. Claimant admits in his deposition testimony that he did not notify corrections officers about the attack because he had been in no fights and had no reason to believe that he would be assaulted.

8. Claimant testified that the assault lasted a very short period of time and that Corrections Officer Paul J. Losito and Correction [sic] Officer Jeffrey A. Nickerson were a very short distance away and arrived in less than 15 seconds after the assault.

9. Deponent submits that for the reasons set forth in the attached memorandum of law, the claim has no merit and the Court should grant summary judgment and dismiss the claim.

(Paper No. 6)

Claimant opposes the State's Motion for summary judgment, basically arguing there are two issues of fact. Claimant's counsel summarizes these issues:
4. ...First, Claimant alleges that within a very short period of time prior to the knifing incident during which he was injured, the correctional facility in which he was housed released a prisoner from "maximum security" status to the "general population confinement" area in which he was housed. The Claimant alleges that this prisoner, verily believed to be named Hassan Chun, had been placed in maximum security for previously "cutting up" a fellow prisoner, and that Mr. Chun is the prisoner who started the disturbance which led to the knifing incident injuring the Claimant. The claimant [sic] alleges that releasing this prisoner to the general population was a breech of reasonable security measures for State correctional facilities and by doing so, placed himself in particular, and the other prisoners in the unit in general, at an unreasonable risk. Claimant further alleges that this negligence was a cause in fact in his sustaining the injury giving rise to this lawsuit [sic]

5. Second, in addition to placing a high-risk prisoner in the general population area, the two correctional facility officers who were responsible for "guarding" the E-3 unit in which the Claimant was housed left the E-3 recreation area where the attack on Claimant occurred totally unattended for several minutes2 for a "non-emergency" reason. The officers were both in the dormitory area filling out some paperwork relating to an incident which had occurred approximately only 15-30 minutes before. This act, even according to the defendant's own witnesses3 (see references immediately below), was against reasonable correctional officer supervisory practice in a New York State correctional facility cents [sic] there was no emergency which necessitated leaving the recreation area totally unattended for any period of time. This act of negligence was likewise a cause in fact in his sustaining the injury giving rise to this lawsuit. Stated otherwise, at the time the disturbance broke out in the E-3 recreation area, both officers assigned to the unit had gone to the dormitory area and had left the recreation area totally unsupervised, for nothing other than to fill out some paperwork. The claimant alleges that this act of neglect fell below the reasonable standard of care required of correctional supervision and thus amounted to a breech of the duty which was owed him at the time. See, Castiglione v. State of New York, 25 AD2d 895.

"Several minutes" here has been explained to be anywhere from between 5 to 20 minutes according to the factual dispute. Officer Paul Losito testified at his EBT that he thought it was abut five minutes. In contrast, according to paragraph 11 of the August 29, 1996 Affidavit executed by Mr. Losito (attached as "Exhibit I" to the State's Memorandum in support of defendant's Motion for Summary Judgment, he states that it was perhaps as many as ten minutes. Officer Nickerson testified that he thought it was as much as ten minutes. The plaintiff testified that it was long enough that the officers had completed their paperwork and were playing a game of cards when he passed by them on his way out of the dormitory back to the recreation area. The entries which were made in the E-3 unit logbook suggest that the period of time which the two officers were situated in the dormitory area together, thereby leaving the recreation area totally unsupervised, was as much as twenty minutes

Officers Nickerson and Losito
(Paper No. 8[1])

A motion for summary judgment (SJ) "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212 [b]). CPLR 3212 goes on to provide that a motion for summary judgment shall be denied "if any party shall show facts sufficient to require a trial of any issue of fact" (CPLR 3212 [b] [underscoring added]). With regard to this provision, the Court of Appeals has held:
[B]ecause "summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Moskowitz v Garlock, 23 AD2d 943, 944), we have scrutinized the affidavits carefully, in the light most favorable to [the non-moving party]. But only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment.

(Rotuba Extruders v Ceppos, 46 NY2d 223,231; see also, Nidds v Procidano, 95 AD2d 912).

With regard to the first issue, that of the State's releasing inmate Chun into the general population, the Court finds that there are no bona fide issues raised by evidentiary facts sufficient to defeat the State's motion for SJ.

Claimant has provided four (4) versions of the events that led to his stabbing.

The earliest version was described by the Claimant at a Tier III involuntary protective custody hearing on November 28, 1995, where Claimant testified:

(Paper No. 7 , Ex O)

The next version is found in an affidavit, sworn to September 17, 1996, provided by Claimant in support of the previously described Cross-Motion for permission to late file, in which he averred in pertinent part:
At about 10:00 pm, I was in my recreation area. There is a Correctional Officer post in the recreation area. I had gone into the recreation area approximately 20-30 minutes before the incident. At that time, I observed the Officer assigned to the recreation post, playing cards in the dormitory with another officer, away from his post. I was watching television in the recreation area. Other inmates were present in that area with me. Shortly thereafter, an inmate named Chunn came in to the recreation area from the Special Housing Unit. Chunn had been placed in segregation for cutting a Five Percenter (a prison clique). There were two or three stabbings or cuttings that day, before the incident in which I was stabbed related to Chunn's cutting of the Five Percenter. Upon information and belief, the administration was aware that there was a probability of violent retribution. While in the recreation area, Chunn was repeatedly assaulted by Five Percenters. During the course of that fight, I was stabbed by an inmate whose name I do not know.

(Paper No. 3, p 9)

The third version was supplied by the Claimant during his examination before trial on August 31, 1998. Claimant testified, in pertinent part:[2]
Q. Now we're going to talk about the incident that actually occurred. Where did you go when you first got back onto E-3 after refereeing the game?

A. To my cubical.

Q. That would be in the dorm area?

A. Correct.

Q. Did you pass through the rec area to get there?

A. Yes.

Q. Do you recall how long you were in the dorm area?

A. Up until the point I got stabbed?

MR. UNGER: Were you stabbed in the dorm area or were you stabbed in the rec area?

THE WITNESS: I was stabbed in the rec area.

MR. UNGER: He's asking how long were you in the dorm area before you went back in the rec area.



A. Two minutes.


Q. Did you go immediately from the dorm area to the rec area?

A. Correct.

Q. How long were you in the rec area before you were stabbed?

MR. UNGER: Approximately.

A. Seven, eight minutes.

Q. Describe for me what happened leading up to the stabbing. Once you entered the rec area, what did you do?

MR. UNGER: Before the stabbing he wants to know what you were doing in the rec room.

A. Yeah. I got back, I had finished refereeing a game, some guys had cooked some food for me in the back of the rec area, they had finished it, it was on the stove. I went back there, grabbed my food, sat down in front of the TV and started watching a football game, Philadelphia versus Dallas. I knew there was some tension in the air because someone was cut in the rec area earlier that night and it was in my dormitory, the guy was from my dormitory. I was reffing a game. Continued to mind my business. I didn't know what was going on.

MR. UNGER: Just tell him what happened.

A. I didn't know what was going on, next thing I know I turned around and I see guys with knives out, shanks out and no one is getting stabbed, they're just - - people have knives. So, I'm like, whoa, I turned around to mind my business. And about two minutes later I got hit in the back.

MR. UNGER: When you say you got hit in the back, you mean you got stabbed?

THE WITNESS: I got stabbed in the back.


Q. When you came out of the kitchen area with your food, you indicated - -

A. Correct.

Q. - - you sat down?

A. Correct.

Q. Where did you sit down?

A. At the picnic table in front of the TV at the back of the rec area.


Q. You indicated when you sat down at the picnic table to watch the game and eat your food, there were other people at the picnic table?

A. Yes.

Q. Were there any sitting on the same side as you?

A. No.

Q. How many people were sitting across from you?

A. Four.

Q. You also indicated when you first entered the rec area, you had gotten the impression that there was tension?

A. Right.

Q. Could you describe what you observed that led you to that belief?

MR. UNGER: One second. Objection to the form. Was this based on an observation or what you had heard before that someone had been stabbed earlier that day, or both, or something else?

THE WITNESS: Based both on observation, what had happened earlier, the fact that the supervising officer had released the guy from the special housing unit premature as opposed to sending him to a max A actually created drama on the dorm. Just groups of people separating like we're getting ready to have war.

MR. UNGER: What he asked you, though, is: Did you observe anything that caused you to believe that there was tension, and if so, what did you observe? I think that's what he wanted to know.

THE WITNESS: And I just answered that. I said groups of people - - groups of people, I said a guy coming from SHU, all of these in conjunction gave me the impression there was a problem.


Q. You indicated that someone had gotten stabbed earlier in the evening?

A. Correct.

MR. UNGER: The evening or the day, did you say?

THE WITNESS: I said earlier that day.

Q. Earlier that day. Were you present when that happened?

A. I was reffing the game when it happened.


Q. Did it happen at the game?

A. It happened in the bleachers while the game was being played.

Q. And you indicated that that involved members from your same dormitory unit?

A. Right. Everybody was from my dorm - -

Q. That was at the game?

A. - - involved in the problem. Yes.

Q. So, this would have been the stabbing that you referred to earlier in the evening - -

A. The cutting. I didn't say stab.

Q. How soon into the game did this start?
A. Did what start?

Q. This cutting.

A. I don't - - I don't know when it started. All I know is I saw the guy's face and he was from my dorm and he ran across the court like to get some friends, and that's why I know it was from my dorm.


Q. When you got back to the dorm, were any of the people that you saw involved in this cutting in the gym in the dorm or rec area at E-3 when you got back?


A. Yes.

Q. Was it the individual that got cut?

A. He was one of them.

Q. How many others?

A. With him?

MR. UNGER: How many others that were involved in the incident that you observed in the rec room when you came back. Besides the fellow that was cut.

A. At the time I didn't know. Later on I found out. It was about six.

Q. How many inmates were in the rec room when you got back from reffing the game?

MR. UNGER: Approximately.

A. Twenty-five, thirty.


Q. How many were in the rec room when you returned back to the rec room after going to the dorm?

A. Pretty much all of the dorm.

Q. Would that be approximately 60 that you testified to before?

A. Yeah. If the number of inmates there is 60, yes, that's what it would be, excluding individuals whom are on disciplinary sanctions.

Q. Did you have an opportunity to observe any correction officers on E-3 when you got back from reffing the basketball game?

A. Yes, I did.

Q. How many did you observe?

A. Three.

Q. Do you know their names?

A. No, I don't.

Q. Do you know any of their names?

A. No, I don't.

Q. Could you describe for me where they were located when you first got back to the E-3 unit from reffing the game?

A. When I first got back to the E-3 unit from reffing the game, there were only two officers at that time. They were inside the dorm at that guard's station and they were playing cards.


Q. Can you describe any of those two correction officers?

A. No, I cannot.

Q. You indicated that in the rec area there was, for lack of a better term, a guard's station?

A. Correct. A little desk, chair. It wasn't really a guard's station. Just a designated desk, chair and everybody knows that's the police's chair.

Q. Where is that located in the rec room?

A. Directly next to the corridor entrance leaving the rec area.


Q. Was there a table there?

A. At that time, yes, there was.

Q. And a chair?

A. Yes, there was.


Q. When you went back to the rec area, when was the first time you noticed that any inmates may have had weapons?

A. Just two minutes prior to me being stabbed.
Q. That was after you had gotten your dinner and had come out of the kitchen area?

A. Correct.

Q. How many inmates had weapons that you saw?

A. Three or four.

Q. Other than the incident that took place in the gym that you've testified to before, were you aware of any other incidents that occurred on the E-3 unit just prior to the time that you returned back from reffing the game?

A. No.

Q. Were you aware of any other incidents on the E-3 unit at any other time on November 6, 1995, prior to the time that you were stabbed?

A. Yes.

Q. Describe when, first of all, the incidents would have occurred.

A. When I dropped my sneakers in my cubical, I was walking through the corridor and I passed a officer whom wasn't a normal officer in our dormitory entering the rec area. And I saw a new guy, a small guy whom I've never seen before with draft bags that had SHU on them.

MR. UNGER: When was this, what time of the day or evening, do you know?

THE WITNESS: Ten minutes before I was stabbed, maybe.

MR. UNGER: Okay. Where was this officer?

THE WITNESS: I passed him in the corridor.

Q. Where was he headed?

A. He was headed into the guard's station to inform them that this inmate had just came on the unit.

Q. And that guard station would be the guard station located in the dorm?

A. Correct.


Q. Was it that time that you became aware that there was an earlier incident on E-3?

A. No. I still didn't know there was an earlier incident.

Q. Did there come a point in time when you became aware that there was an earlier incident on E-3?

A. No.

MR. UNGER: So, the only incident you were aware of that day was the basketball incident?

THE WITNESS: In the gym, another part of the jail.

MR. UNGER: The gym. And when you came back, you got stabbed?

THE WITNESS: That's it.


Q. The inmates with the weapons that you saw in the rec area after you got your meal, your food, could you describe for me what you observed about their behavior as it relates to what they were doing with the weapons?


A. They were chanting - - their attitude was more supportive of the guy that just came on the dormitory with the draft bags. Not knowing who he was, that's why I kind of like ignored them, because I was like why - - why do they have knives and they're supporting this guy like this?...these guys are crazy to have knives out....


Q. Where were they in relation to you?

A. They were a safe distance away from me. They were at least 15 feet away from me. They were right next to that guard - - that guard's station. That's where they had gotten the knives from, underneath the guard's station. That's where people hide their knives.


Q. Again, when you first saw them with the knives, what were they doing with the knives?

A. Brandishing the knives for at least two minutes or a solid two minutes.


Q. Were there any arguments going on between inmates at that point in time?

A. There were Five Percenters on the opposing wall, but they weren't saying anything.

Q. There was no altercation at that point in time?

A. No altercation, no. None.


Q. Did any other incidents take place between the time that you noticed the inmates with the weapons and the time that you were stabbed?

MR. UNGER: Did something happen there, that's what he wants to know.

A. By the time I was stabbed?

Q. Yes.

MR. UNGER: Between the time that you saw the weapons and you said two minutes later you were stabbed.


MR. UNGER: So, what happened is what he wants to know.

A. The guy came in from the SHU, the special housing unit, he went over and braced the guys with the knives. The majority of them were from Queens, that was a thing. So, it was more like Queens - - it ended up more like Queens against the Five Percenters, but in that time frame nothing happened. It was just instantaneous until I was hit and I turned around like, what in the hell is going on? And I see groups of people fighting and they're going at it.

Q. Did you have an opportunity to observe the person who stabbed you?

A. No. Only from the back. I saw him running away.

Q. Can you describe him for me?

A. From the back?

Q. Yes.

A. He had dreads, dark skin with a very long fiberglass knife. And when I went to chase him, my lung collapsed.

Q. Do you know if any of the other inmates that you were sitting with had any opportunity to observe who stabbed you?

A. Impossible. They were turned around facing the TV and I was eating behind them. They didn't have a clue. The TV is blasting, we don't - - we're not even into that, that's why I can't really tell you what the conversation was.

Q. What did you do after you got stabbed?

A. I felt the knife in my chest. I pushed on it and it went out and I pushed the guy off me. That's why I didn't see him, I just pushed him off of me and stood up. When I stood up and I saw the knife, I realized I was hit and I went for the kid, but he was already running away like he had stabbed me by accident or something....


Q. What was the next thing you did after you pushed him away?

A. I stood up to go after him and I couldn't, I couldn't move....and I walked into the dorm behind him like to see who it was that had stabbed me. And he must have ran into the shower or something because I couldn't see him in any immediate dorm....

At that point - - at that point I went back thinking that the officer I had passed in the corridor had just went out there to break this fight up. I went back out into the dormitory and that's when I was just ran over by lieutenants and sergeants who were coming in to break the fight up. I approached a lieutenant and sat down right there and the - - in the guard's seat....And the sergeant was like, what are you sitting there for? I said, I'm hit pretty bad, man, I think I'm dying and everything stopped and they took me to the hospital.


Q. When was the first time you saw a correction officer after you were stabbed?

A. As soon as I came back through that entrance.

Q. Which entrance are you talking about?

A. The entrance going into the rec area.

Q. As soon as you entered into the corridor or returned back from the corridor?

A. Returned back from the corridor.

Q. So, from the time that you got stabbed and you entered the corridor you did not see a correction officer?

A. No.


Q. Do you know what happened to the two officers that were in the dorm area - -

A. They almost ran me over. When I got here (indicating), I had to stop - - when I got to the corridor leading to the rec room, I had to stop because officers were coming in to break up this fight. And I don't know if they were coming in to break up the fight. And I don't know if they were coming in to break up the fight or take this guy back to SHU, the special housing unit, but it was more than one officer. And it was ironic that they came at a time when there was groups of Five Percenters and groups of guys from Queens fighting.


Q. How many inmates were involved in this altercation in the rec room around the time that you were stabbed?

A. Engaged in combat?

Q. Yes.

A. Nine, ten.

Q. What did that combat involve? Was it more than words?

A. Knives, wrestling, punching, kicking, throwing things.

Q. How long did that take place before any correction officers arrived, if you know?

A. After I was hit, how long did it go on?

MR. UNGER: I presume that's what he's asking.

Q. Yes.

A. Seconds.

MR. UNGER: He's saying how long did it go on until the correction officers arrived.

A. In totality?

Q. The first correction officer.

A. Seconds. Fifteen seconds they were there, fifteen seconds after I was hit. It took me about five seconds to walk to this corridor. Come back, the officers were coming in, they're breaking up fights. Fifteen seconds.

Q. Did you see what you were stabbed with?
A. No, not really. I can't really say I seen - - I seen what I was stabbed with because he was running away, you know. All I know it was - - it was fiberglass, what was in his hand, the butt of it because these guys steal fiberglass casts out of their infirmaries and make shanks out of them. But I didn't know if it was fiberglass, the entire knife.


Q. You said they were first there within 15 seconds of you being stabbed?

A. Yeah. It was like five officers, four or five officers. It was a - - I think it was two supervisors and maybe three, four regular correction officers whom came, which afterwards gave me the conception that maybe they were coming for this guy to take him back to the dormitory. Oh, this is a grave mistake, we put him in the wrong dorm, guys.

(Paper No. 7, Ex C)

The most recent version of the events leading up to the stabbing is found in Claimant's affidavit in opposition to the present motion, sworn to on May 19, 2000 in which Claimant avers in pertinent part:
1. I am the Claimant in this cause and make the allegations contained herein upon reasonable information and belief obtained by me since the subject incident occurred.


3. Within a very short period of time prior to the knifing incident during which I was injured, the correctional facility in which I was housed released a prisoner from "maximum security" status to the "general population confinement" area in which I was housed. This prisoner, verily believed to be named Hassan Chun, had been placed in maximum security for previously "cutting up" a fellow prisoner

4. I have been informed by reliable inmates sources that Mr. Chun is the inmate who started the disturbance which led to the incident during which I was knifed in the back. Under the circumstances, it is my contention that releasing this prisoner to the general population was a breech [sic] of reasonable security measures for State correctional facilities and by doing so, placed me at an unreasonable foreseeable risk.

5. When I left the dormitory area after taking a shower to go back to the recreation room at approximately 10 p.m. on Nov. 5[3], 1995, I passed both correctional Officers Nickerson and Losito on my way to the connecting hallway. At that time, the two officers were playing a game of cards.

(Paper No. 10 [emphasis in original] [footnote added])

What follows are excerpts from the examination before trial of Jeffrey A. Nickerson, one of the correction officers on duty in E-3 dormitory at the time of the incident:

Q. Do you have an independent recollection of the Nelson incident as you sit here today?

A. Vaguely.

Q. Okay. Tell us what you remember about that. What time did it happen, starting with that?

A. I'd say approximately probably around 9:00. Inmate Nelson - - there was a problem with Inmate Nelson and the rec TV.

Q. What was the problem?

A. Okay. Per Woodbourne directive, officers control the TV. That includes volume up, down, channel up, down, on or off. And Inmate Nelson was given several direct orders not to direct the TV. Inmate Nelson got irate and in short got keeplocked.


Q. Do you recall that he turned off the TV?

A. Yes, he did. Turned off the TV and went into the dorm area.

Q. And according to Losito, you were there with him in the recreation room and saw him turn off the TV, is that correct?

A. Yes.

Q. When he did that, what do you recall happening next?

A. He went to his cube. I called Sergeant Tyborowski to let him know what happened. And he informed me that he would be being keeplocked, to hold him in his cube and he'll send an escort up to escort him down to keeplock.


Q. Did you go with Nelson to the dorm room?

A. I followed him in there, yes. I did not escort him in there. I followed him in there.


Q. After Nelson was escorted away, what did you do?

A. Well, I had misbehavior reports to write.

Q. It was one misbehavior report?

A. At that time, yes.

Q. What did you do?

A. I proceeded then writing up, following up what had happened with the misbehavior report, and writing down the charges and putting it all down on paper.


Q. Have you ever played cards with Officer Losito?

A. No. No.

Q. Have you ever played cards while on tour?

A. No.


Q. How long did it take you to make out the misbehavior report on the Nelson incident?

A. I don't remember.

Q. Approximately.

A. Probably approximately 20 minutes. Like I said, you've got other things to do on top of writing, so. . . .

Q. What other things were you doing?

A. You've got the dorm to watch. You've got the security of your area.


Q. Do you know, prior to this incident, Tony Rhodes incident, when was the last time that the E3 inmates had been searched for weapons?

A. I couldn't tell you.

Q. Were they searched that day, do you know?

A. I couldn't tell you.

Q. Not to your knowledge?

A. Not to my knowledge, no.

Q. Okay. Was there a standard practice to search inmates within a given period of time? In other words, once a day, once a week, once a month, anything like that?

A. They usually do it on a random basis. They don't want to make a pattern.

Q. When you say, "a random basis," how often usually?

A. Randomly. It depends on what you mean by - -

Q. Once a day - -

A. The whole dorm searched or - -

Q. No, I'm referring specifically to this unit, E3. Were they usually searched on a random basis, once a day, once every other day, once a week, once a month? Just a ballpark.

A. At any given time, random can be once-a-day random.

Q. Random means not particularly any time of day. I'm asking you, was it done on a daily basis?

MR. DANAHER: Object to the form.

A. What do you want? If I search daily? I searched all of the time up there. But whether it was on directive, it was random, is all it was.

Q. On directive, was it usually a daily or less frequent than that?

A. I would have to say daily, because every officer at one certain time searches something, looks at something, does cube frisks, cube search, area searches. I mean that's part of our job. That's what we're supposed to go in there and do.

Q. And you do that all of the time, too?

A. I still do. It's part of my job.

Q. The inmate that was involved in the fight or the two inmates that were involved in the fight in the Tony Rhodes incident, do you know when they were searched prior to - -

A. No, I don't.

Q. - - the incident?

A. No, I don't.

Q. How about by you?

A. By me?

Q. Yes.

A. Prior to that incident?

Q. Yes.

A. I don't recall searching either one of them personally.
(Paper No. 7 Ex. D)

Correction Officer Nickerson avers in pertinent part:
4. That I was the correctional officer assigned to the E-3 Dormitory area at the time of the incident. The E-3 area was my regular assignment area and I am familiar with the assignment.


6. That another officer was assigned to the E-3 recreation area on the night of the incident, C.O. Losito.

7. My post was E-3 "1st Officer" which means I am posted in the dormitory area. The other officer was E-3 "2nd officer" and his post was in the Rec area.

8. That on the night of the fighting incident there was a separate incident involving an inmate Nelson who created a disturbance regarding the television.

9. I was at my desk in the dormitory when I heard this disturbance and went out to assist Officer Losito.

10. Officer Losito and I escorted inmate Nelson into the dormitory area and I called my area sergeant, Sgt. Tyborowski. Sgt. Tyborowski told me to write a Misbehavior Report on Nelson and ordered him to be keep locked. I called the dormitory patrol to escort inmate Nelson to the Special Housing Unit (SHU).

11. Sgt. Tyborowski notified me that another inmate was going to replace inmate Nelson on the unit.

12. After inmate Nelson was picked up I started writing the Misbehavior Report at my desk. I wrote the Misbehavior Report because I was more familiar with the inmates on the unit but I needed C.O. Losito to describe the incident because he saw it from the beginning. As I wrote the Report Officer Losito was recording the transfer of inmates and disturbance in the E-3 Log Book.

13. That the Log Book is kept at the officer's desk in the Dormitory Area which is just 2 to 3 feet from the dormitory end of the hallway.

14. While I was writing the Misbehavior Report I heard a ruckus in the Recreation area. Myself and Officer Losito immediately ran into the recreation area.


19. That I estimate that after hearing the fight start I was into the recreation area in less than five seconds.

20. I later learned that inmate Rhodes, the claimant had been stabbed. An officer came and escorted Rhodes and the other inmates to the hospital.

(Paper No. 7, Ex J)

What follows are excerpts from the examination before trial of Paul J. Losito, one of the correction officers on duty in E-3 dormitory at the time of the incident.
Q. Was a CO assigned to the rec room?

A. As a number two officer, which was me, I am - - I don't know how you put it. The rec area is mine to watch.

Q. That night was your assignment specifically the rec room or did it encompass a whole floor?

A. The whole unit.

Q. When you say, "the whole unit," what are you referring to?

A. The dorm area, the corridor, the rec area, the kitchen.


Q. So, in other words, for that eight-hour period of time you were responsible for these three areas? When I refer to "three areas," I'm referring to the dorm, the hallway and the rec room. I'm including the kitchen as part of the rec room. So, that would be like three areas.

A. Correct.

Q. How many other officers were assigned with you to watch those three areas?

A. One.

Q. And during your entire eight-hour tour, it would be you and another officer that would be responsible solely for those three areas?

A. Yes.

Q. And while you were on your tour, you weren't responsible for any other areas? You just would be assigned for those three? In other words, what I'm getting at is during your eight-hour period you weren't responsible to go to any other area besides the three you've mentioned?

A. No.

Q. I'm correct?

A. You are correct.


Q. By the way, throughout this deposition if you recollect something different, please feel free. You know, you can change anything you want.

A. On the chow run earlier in the shift, timewise, I don't know, one of us - - one of the two of us officers would take the unit or partial unit to the mess hall, escort it and escort it back.


Q. I didn't know that. When the inmates were in the recreation area, were some of them allowed to be in the dorm at the same time?

A. Yes.

Q. They could freely go from the dorm to the rec area and back?

A. Yes. Correct.

Q. So, this hallway between a dorm and rec room is kept open?

A. Open.

Q. And they have free access?

A. Yes.


Q. You've indicated that there is a chair for the CO in the rec room. Is there similarly a station or a chair in the dormitory area for the CO?

A. Yes. It would be a raised podium, chair and a desk.

Q. And the purpose of that raised podium would be so that he could see over the partitions?

A. Partially (indicating).

Q. Now, when you were assigned to a tour three, are you assigned specifically one officer take the rec room and one officer take the dormitory area?

A. No.

Q. How does it work? You decide between yourselves who goes where?

A. The number one officer, which was Nickerson, is the dorm area. I was number two officer, rec area. During the course of the evening you can switch, relieve the other guy, check up on each other, make sure things are okay, no problems going on. Any problems that might happen or occur during the night, you would have to check with your partner so that both of you know what's going on.


Q. That particular night, that is, the night of the incident - - all my questions will be with regard to the specific night unless I say otherwise.

A. Okay.

Q. On that night you started off in the rec room? In other words, that was your assigned post and number one officer was assigned to the dormitory?

A. Correct.


Q. How often are the inmates searched?

A. Random. Searched here, searched - - can you be more specific?

Q. Specifically with regard to the inmates that are in this unit that we're talking about, do you know how often they were searched?

A. Searches are done on a random basis. Under suspicion or it's designated from higher authority.

Q. So, it's one of three, random or suspicion or designation, is that correct?

A. All three covers it.

Q. Okay. Approximately how often is a random search conducted? Ballpark figure.

A. I don't have an answer.

Q. Have you ever been involved in searching inmates?

A. Yes.

Q. How many times have you done that?

A. I don't have a number. I couldn't give you a number there.

Q. Many, many times?

A. Many times.


QQ. Have you ever played cards with one of the other officers?

A. No.


Q. At the time the Tony Rhodes incident began, what were you doing?

A. I was writing in the log book. At the time that we heard anything going on with the Tony Rhodes incident, I was writing in the logbook at the CO's desk. I heard a commotion which was in the adjoining rec room. I - - both me and my partner responded to it.

Q. That's Nickerson?

A. Correct.

Q. What was Nickerson doing while you were writing in the logbook?

A. Nickerson was writing a misbehavior report on Inmate Nelson.


Q. Now, there came a time that you decided that you were going to make whatever entries on the Nelson incident in the logbook in the dorm room, right?

A. (Nods head)

Q. And that was at 10:05, right? According to the records, right?

A. Right.

Q. So, you left the rec room, went to the dorm room, made the entries. You heard a disturbance.

A. Correct.

Q. From the time you left the rec room to the time you heard this disturbance, how much time elapsed?

A. A couple minutes.

Q. What is a couple minutes? What does a couple mean? Tell me. You mean one, two, three?

MR. DANAHER: To the best of your knowledge.

A. To the best of my knowledge, five or less.

Q. As a matter of fact, according to your entry it was probably about three minutes. Would that be about right?

A. That would be about right.

Q. From the time you heard the disturbance to the time you responded to it, that is, you know, actually got to the rec room, how much time elapsed?

A. Five seconds or so, thereabouts.


Q. When was it prior to the Tony Rhodes incident that you or anyone else that you know of searched those inmates for weapons?

MR. DANAHER: Object to the form.

MR. KATZ: What's the objection to the form?

MR. DANAHER: Who is "those inmates"?

MR. KATZ: The inmates that were involved in the incident.


A. I don't know all of the inmates that were involved in it?

Q. The ones that were in that unit.

A. You are talking about the approximate 67?

Q. Right.

A. When was the last time they were searched?

Q. Correct.

A. I don't know.

Q. Would it be safe to assume then that they were not searched throughout the time of your entire tour that was from 3:00 in the afternoon until the incident?

MR. DANAHER: Object to the form.

A. I can't answer that.

Q. Were you with them the entire time?

A. With all of the 67? No, I wasn't.

Q. Well, if there was a search made of the 67 inmates, would you have known about it?

A. No. Not necessarily. If it was on my dorm, I probably would have known about it.

Q. I'm talking about in your dorm. I'm talking about the inmates that you were responsible for that day.

A. Okay.

Q. Those guys, those inmates. Were they searched at all for the weapons during your tour on that day?

A. Prior to the Tony Rhodes incident?

Q. In other words, Tony Rhodes' incident happened approximately what time?

A. I put in there 10:08.

Q. Not 10:20?

A. Approximately 10:08 PM.

Q. So, from the time you got on at 3:00 to 10:08 - -

A. Had I searched?

Q. Or Nickerson.

A. I didn't search any.

Q. Did Nickerson?

A. I can't answer that for him.

Q. He might have frisked one or two, you wouldn't know about it?

A. He might have, I wouldn't know.

Q. Is that common practice that you would frisk an inmate on your own?

A. Yes.

Q. Is there any set standard by which you look for weapons? When I mean "a set standard," is there any time standard that is usually - - that it's usually done within an eight-hour period, once within an eight-hour period or once within a 24-hour period or any set time?

A. No.

Q. Is it conceivable that they could go on for two weeks without being searched?

MR. DANAHER: Object to the form.

Q. Well, what's the longest that the inmates could go without being searched for weapons?

A. I don't have an answer.

Q. Is there any standard that's accepted in the correctional service that inmates should be checked for weapons?

A. Can you rephrase that?

Q. Is there a standard or rule or regulation that they be checked, say, once every week or once every day or anything like that?

A. To my recollection, there isn't , no.

Q. When inmates are searched, is there a record kept of that search?

A. I believe - - depending on the - - random pat frisks, I'm not sure if there is a record. If there is a pat frisk, I'm not sure if there is a record kept on it.

Q. How about any other search?

A. Body searches, yes, there is records kept on it.
(Paper No.7 Ex. E)

Correction Officer Losito avers in pertinent part:
4. That I was the Correctional Officer assigned to the E-3 Recreation area at the time of the incident.

5. That the E-3 Recreation Area is Connected to the E-3 Dormitory by a short hallway of approximately 20 feet in length. There are doors on either end of the hallway but both were open and the center of the Recreation Area is visible from the Dormitory Area, although the entire Recreation Area is not visible.

6. That another officer C.O. Nickerson was assigned to the E-3 Dormitory. E-3 was C.O. Nickerson's regular area. E-3 was not my regular area but I am familiar with the assignment having been assigned to Recreation and Dormitory areas both in the E-3 area as well as other areas.

7. That prior to the fighting incident which lead [sic] to the claimant's injuries there had been another separate incident involving an inmate creating a disturbance in the Recreation Area.

8. That I reported the prior disturbance to C.O. Nickerson who assisted me in escorting the inmate out of the Recreation Area into the Dormitory Area where the facility escorts were called to take the inmate to the Special Housing Unit (SHU). At this time we were advised that another inmate was being assigned to the E-3 Dormitory to replace the SHU inmate.

9. That I provided C.O. Nickerson with information so that he could write a Misbehavior Report on the SHU inmate, which he did as he waited for the new inmate.

10. That at the same time I began making entries into the E-3 log book, which is located in the Dormitory Area near the hallway, regarding the Misbehavior Report, the outgoing inmate and the incoming inmate.

11. That I was away from the Recreation Area for less than ten minutes when I heard a commotion or disturbance as I was filling in the log book.

12. That although I could not initially see the incident in the Recreation Area I heard the disturbance and then saw other inmates clearing out of the way in the Recreation Area.

13. That I and C.O. Nickerson immediately responded to the recreation area where two inmates were involved in a fight. Neither of these two inmates were [sic] the claimant, Tony Rhodes.

14. That upon entering the Recreation Area the two inmates were ordered to separate, but one inmate picked up a chair which he then threw at the other inmate striking him. As he picked up the chair I pulled the pin on my alarm device and called a "Red Dot" on "E-3 Rec".

15. C.O. Nickerson then physically restrained the inmate who threw the chair with a "Full Nelson" and I ordered the other inmate to "take a wall" which he complied with. The "Red Dot" response team arrived shortly thereafter, with approximately 10 C.O's [sic], but the altercation had already been broken up.

16. There was no further confrontation between these two inmates or any other inmates. These two inmates were the only inmates actually observed fighting.

(Paper No. 7, Ex I)

What follows are excerpts from the examination before trial of Sergeant Casimiur Tyborowski:
Q. Officer number one would be assigned to oversee the dormitory area and officer number two would be assigned to oversee the rec area. That's initially. And they could change among themselves, but the initial assignment was one would go to the dormitory room and number two would go to the rec room. That's the accepted mode?

A. That's the basic, yeah.

Q. Okay. And was it also accepted that each officer should be in constant supervision of their particular area?

A. If at all possible, yes.


Q. Is there any rule or regulation or even standard that inmates are searched for weapons?

A. Here at Woodbourne we don't have a regular, in other words, a daily routine search. We do it mostly on suspicion or tips, things like that.

Q. Is there good and acceptable practice in the corrections field to do it within a certain time? In other words, we won't let a week go by without doing a search, something like that? I don't mean to limit you to a week or whatever, just is there any accepted practice of - -

A. Again, I can only speak about what we do here.

Q. I'm only concerned about Woodbourne.

A. We basically either random or under suspicion. There is no set time, if I understand your question.

Q. When you do it randomly, how much is that usually done.

A. That's impossible to say. It could be several times in one day in a certain area and it could be once or twice in a week in another area. Depending on if we're doing inmate property or inmates themselves.

Q. How about E3?

A. They fall under the same rules.


Q. Would you agree, Officer, that they should not both be writing reports in the dormitory at the same time? In other words, one should remain in the rec room while the other was in the dormitory writing a report and then switch off?

A. Ideally, but that doesn't happen. We cannot have constant visual all night long. People go to the bathroom, people have this happen, people have that happen. Reports have to be written. If for some reason they have to or happen to go in together, both in the same area, it happens. And I have no problem with it as long as it's just momentary.

Q. How much time are we talking, "momentary"?

A. Momentary, minute, seconds. As long as it's a legitimate thing, I have no problem with it. And it's normal one man cannot sit for eight hours in one spot. It just does not happen.


Q. You would agreed that it would be a deviation from the good and accepted practice for them to be in one room, leaving another room unattended for more than, say, three minutes?

MR. DANAHER: Object to the form. You can answer.

A. I wouldn't like to, but if it happens for a good enough reason, then I will not argue the situation. Because it can happen.

Q. When you say, "good enough reason," you mean like an altercation or fight, something that they have to respond to? Let me ask you straight. Would filling out reports, both filling out reports at the same time be a good reason to leave one area like the rec room unattended for five minutes or more?

A. No, it - -

MR. DANAHER: Object to the form.

A. No, it wouldn't be a great reason, no.

(Paper No.7 Ex F)

Sergeant Tyborowski avers in pertinent part:
2. That I was the "Area Sergeant" responsible for the E-3 Unit on November 6, 1995 when the incident occurred. As Area Sergeant I supervise the C.O.s stationed at several units.

3. That on the 3:00 - 11:00 p.m. shift there are usually two officers assigned to a unit. The "First Officer" is assigned to the Dormitory and the "Second Officer" assigned to the recreation area. The unit is a confined area consisting of an open dormitory without cells connected by hallway to a recreation area.

4. That from time to time the officers have responsibilities which require them to leave the unit and only one officer covers both the dormitory and recreation areas. The officers are not expected to remain stationary at a specific post. They are expected to roam throughout the unit and to assist the other officer when necessary in either area. During day only one officer is usually on a unit. At night one officer escorts the inmates who are going to the mess hall. The other officer stays on the unit with the inmates who choose to eat on the unit.
(Paper No. 7, Ex. H)

As can be seen, the Claimant's versions vary considerably on important details of the events leading up to the incident where Claimant was stabbed. For example, in one version, Claimant is seemingly unaware of any problems in the rec room until the moment he was struck by fighting inmates. (see supra, p 7 ) In another, Claimant claims that an inmate named Chun was "repeatedly assaulted" by the rival gang members upon entering the rec room. (see supra, p 8) In yet a third version, supplied during his deposition, Claimant describes inmates "with knives out" (supra, p 9), and chanting, (supra, p 13) in support of a new arrival. (supra, p 13) In Claimant's most recent affidavit, which is the fourth version of events, he avers that it was Chun whom started the disturbance that led to Claimant's stabbing. (supra, p 17) Adding to the mystery, when asked during his examination before trial about the stabbings that Claimant had claimed to have occurred earlier on the day of the incident, he described only one such incident in the gym (supra, pp 10 and 12 ) This contradicts his earlier averment that there were "two or three stabbings or cuttings" on the day in question. (supra, p 8) Finally, Claimant "never saw the weapon" (supra, p 7), yet later states, "I saw the knife" (supra, p 14) but "not really". (supra, p 16)

In this Court's prior Memorandum-Decision and Order the Court found that Claimant failed to demonstrate an appearance of merit with regard to the issue of Chun's release into the rec room as a foreseeable precipitating factor:
With regard to these claimed incidents,[4] the Acting Captain at Woodbourne Correctional Facility, Lawrence W. Jones, avers, in pertinent part:

4. That any assertion by Tony Rhodes that there were two or three cuttings on November 6, 1995 prior to the incident in which he was involved is absolutely false.

5. That if there were three or four stabbings in a single day at this facility there would have been, in all likelihood, a facility wide lock down. This did not occur on November 6, 1995 at Woodbourne Correctional Facility.

6. That I have reviewed the Unusual Incident Reports filed at Woodbourne Correctional Facility for the months of September, October and November of 1995.


8. In the month of November there were two Unusual Incident Reports which involved inmate on inmate assaults. The first of these was the incident of November 6, 1995 which lead [sic] to this claim. The second occurred a week later and did not involve any of the inmates involved in the November 6, 1995 incident.

9. That because there is absolutely no truth to the allegation made by Tony Rhodes that there were two or three stabbings or cuttings on the day of the incident, there was no reason to anticipate the assault which occurred or to believe it was related to some prior incident.


Thus, on the critical issue of notice, we have contradictory averments. Ordinarily the allegations of a movant are assumed to be true for purposes of a Section 10 (6) application (Sessa v State of New York, 88 Misc 2d 454, 458; see also Jolley v State of New York, 106 Misc 2d 550).

The Court declines to make that assumption here. Claimant's averments with regard to prior assaults are completely conclusory. He avers that prison officials were aware of prior assaults, upon information and belief, but he is silent as to how he became aware of them. Did he witness them? If so, why "two or three stabbings"? We are told that the prior incidents "related to Chunn" and a "Five Percenter", but we are not told the name(s) of the assailant(s) or victim(s). Either Claimant witnessed the assaults, in which case he could have and should have provided details with regard thereto, or he heard about the assaults, in which case his averments should have been upon information and belief and he should have supplied the source of the information upon which he formed his belief (cf., Matter of Washington v Jenkins, 144 AD2d 367) so the Court could assess the reliability of the source. Since he did neither, there is no reason to believe that the State should have anticipated the altercation that resulted in Claimant's injury, particularly in light of Acting Captain Jones' uncontradicted averments with regard to prison records, i.e., the Unusual Incident Reports.

Conclusory allegations of negligence, without any supporting facts, are insufficient to demonstrate that a claim has an appearance of merit...

(Paper No. 3 [footnote added])

Nothing has changed. Claimant has still not provided the Court with any more information with regard to any prior assaults, other than an alleged assault in the gym which does not appear to have involved Chun. Further, Claimant has provided inconsistent accounts of Chun's involvement in the incident in the rec room which led to Claimant's stabbing. In short, the issue of the State's release of Chun into the rec room and notice of possible violence as a result thereof is not a "bona fide issue raised by evidentiary facts" (Rotuba Extruders v Ceppos, 46 NY2d 223, 231) sufficient to defeat the State's motion for SJ, since Claimant has failed to supply such evidentiary facts. Instead, in his most recent version, Claimant avers that an inmate he "verily believed" to be named Chun, previously had been placed in "maximum security for previously ‘cutting up' a fellow prisoner". (supra, p 17) Not only is this averment conclusory, but one must wonder how Claimant knows about the inmate's prior activities, when he is not sure of his name. Further, "reliable inmates sources" (supra, p 17), otherwise unidentified, who supposedly support one of Claimant's versions of the event, that is that an inmate named Chun "started the disturbance" (supra, p 17) do not present evidentiary facts which raise a bona fide issue, as a matter of law.

However, there remains a second issue of fact, i.e. that of the State's alleged negligent supervision.

It is well established that, with respect to its correctional facilities, the State has a duty to use reasonable care to protect its inmates from foreseeable risks of harm, including risks of attack by other inmates (see, Kemp v Waldron, 115 AD2d 869; see also, Sebastiano v State of New York, 112 AD2d 562). The State, however, is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident. (see, Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711). "[T]he mere fact that a guard was not present within the cellblock at the time of the incident [is] insufficient, absent a showing that prison officials had notice of an especially dangerous situation, to support a finding that the State failed to exercise reasonable care" (Padgett, supra, at 915).
A correctional facility is a dangerous place:
"The operation of a correctional institution is at best an extraordinarily difficult undertaking" (Wolf v McDonnell, 418 US 539, 566; see People ex rel. Vega v Smith, 66 NY2d 130, 141). Correctional facilities are "fraught with serious security dangers" (Bell v Wolfish, 441 US 520, 559), in which there exists an atmosphere of "ever-present potential for violent confrontation and conflagration" (Jones v North Carolina Prisoners' Labor Union, 433 US 119, 132)....As trenchantly observed by Justice Thomas in a concurring opinion in Farmer v Brennan (511 US 825, 858-859): "Regrettably, ‘[s]ome level of brutality and sexual aggression among [prisoners] is inevitable no matter what the guards do * * * unless all prisoners are locked in their cells 24 hours a day and sedated.' McGill v Duckworty, 944 F. 2d 344, 348 (CA7 1991)."

(Gonzalez v State of New York, Bell, J., Claim No. 93465, Decision filed May 19, 1999)

It was in such an atmosphere that, according to Claimant and allegedly based on his direct observation, a correction officer left a guard post unattended for some period of the time, to play cards. Claimant, despite providing irreconcilable versions of the incident in question, did not contradict his assertion that the correction officers were playing cards leaving the post in the rec room unattended, at least in the papers before the Court. There are any number of reasons why a correction officer may not be at his or her post at a given time and the law recognizes this (see, Padgett, supra, p 27) Be that as it may, card playing is not a reasonable reason for leaving a post unattended. Thus there survives a material issue of fact with regard to whether the State breached its duty to use "reasonable care" in supervising inmates, including Claimant.

With regard to Claimant's argument that the two correction officers should not have done paper work together in one location, thus leaving the rec room unattended, if we scroll down Claimant's various scenarios to "they were chanting" (see supra, p 13) and consider that the two correction officers were at the far end of a 20 foot hall and so, arguably, could have heard the chanting and reacted earlier, then, adopting the chanting scenario as true for purposes of the motion, there is an issue of fact with regard to response time. That is, it could be argued that the correction officers should have responded to the chanting and arrived prior to the time that the fight broke out. Thus, the Claim survives in this respect, as well.

Finally, the Court must address an issue ignored, at least in the context of the State's motion, that is, the issue of searches and search procedures. The issue is raised, at some length, in the Claim (see supra, pp 2-3, ¶¶ 20-24, 33), albeit in a purely conclusory fashion. Counsel for the State and counsel for the Claimant are silent on the subject, but it was explored in some detail at the examinations before trial of CO Nickerson (see supra, pp 19-20), CO Losito (see supra, pp 23-25) and Sgt. Tyborowski (see supra, p 27). What the Court is left with, in terms of uncontested facts, is that searches are conducted on a random basis and that the three Correction Officers, at the time of their respective examinations before trial, could not recall when the inmates in the rec room were searched, individually or as a group prior to the incident which gives rise to this Claim. At first blush, one might conclude that the State is entitled to summary judgment based on the theory of recovery as well. After all, the State would be negligent, as a matter of law, if searches were scheduled on notice to the inmates. But, if we again sift through Claimant's various scenarios, we find that Claimant observed "three or four" (supra, p 12) inmates with weapons, presumably knives, which, we are to infer, they obtained, according to Claimant, from "underneath" the guard's station (supra, p 13), which was a "little desk" or a "designated desk" (supra, p 11), which might have been a table. (supra, p 12) Since Claimant, on this motion, must be accorded every favorable inference, the Court finds that the Claim survives on this theory of recovery, as well. In short, there is an issue of fact whether up to four knives could be successfully stashed away underneath a guard's station, or desk, or table, if random searches were performed with reasonable frequency and reasonable thoroughness.

In light of the foregoing, it is

ORDERED that Motion No. M-61333 is GRANTED in part and DENIED in part in accordance with this DECISION and ORDER.


September 8, 2000
Binghamton, New York

Judge of the Court of Claims

Chun is spelled Chunn in other documents before the Court.
The examination before trial of the Claimant contains numerous grammar errors. The Court has elected not to "sic" the errors.
  1. This affidavit had recited November 6, 1995, but the Claimant informed his counsel that the date should be November 5, 1995 which number was then handwritten in above the number "6", which was slashed out. There was no explanation from the Claimant about this change. This is strange indeed, as all the other papers, both from the Claimant and the State, have November 6, as the date of the incident.
  2. The incidents referred to are the "two or three stabbings or cuttings that day" that Claimant referred to in his affidavit submitted in support of his application for Court of Claim's Section 10(6) relief. Thus, Jones' affidavit was also submitted with the State's motion papers on the present motion as well (see, Paper No. 7, Ex G).