New York State Court of Claims

New York State Court of Claims

SANTOS v. THE STATE OF NEW YORK, #2000-005-576, Claim No. 99576, Motion No. M-61571


Inmate claim alleging negligence and careless supervision of inmates was dismissed for failure to state a cause of action

Appellate Result:
291 AD2d 851

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:
Robert B. Druar, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 13, 2000

Official citation:

Appellate results:
rev'd 291 AD2d 851
See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Defendant for an order dismissing the claim, or striking the Note of Issue:

Papers Numbered

1, 2 Notice of Motion and Affirmation
  1. Opposing Affidavit and Exhibits Annexed
  2. Reply AFfirmation and Exhibits Annexed
5, 6 Filed Papers: Claim, Answer

Upon the foregoing papers, this motion is granted and the claim is dismissed.

The Defendant seeks dismissal of the claim herein which alleges an assault upon Claimant by a fellow inmate on or about November 27, 1998. The Defendant references that part of the claim which alleges that it "negligently and carelessly supervised the inmates [at Attica] so as to allow an inmate to be armed and to attack Claimant." As an alternative remedy, Defendant seeks to strike the Note of Issue to allow it to depose the Claimant.

The Defendant asserts that since no further specificity is pleaded, the claim fails to set forth a valid cause of action, noting that the mere occurrence of an assault in a correctional facility does not give rise to an inference of negligence.

In response, Claimant notes that the demand for a bill of particulars, and his response thereto, address information relative to an assault by a correction officer, not a fellow inmate. Thus Claimant asserts that he was never asked for the identity of the assaulting inmate, and that he simply responded to the demands as made. He then asserts that the claim alleges the breach of a specific duty of care owing to lax supervision, and the Defendant's "failure to enforce their own regulation." He avers that this assault took place literally under the noses of correction officers. He also notes, with some validity, that the motion herein seems to be one sounding in summary judgment, and that assuming the truth of the allegations in the claim, summary judgment for the Defendant should not lie. Claimant also opposes that part of the motion seeking to strike the note of issue, filed on March 23, 2000, on the ground that he has responded to all of Defendant's discovery demands, that no new demands had been made, nor were there any outstanding demands for a period of at least nine months preceding the filing of the Note of Issue.

In reply, the Defendant reiterates its argument with respect to the failure to state a cause of action. In that respect Defendant relies upon the reasoning in my earlier decision in Symes v State of New York, Claim No. 97775, Motion No. M-57318, November 1998, where the facts indeed are quite similar to the claim at bar. In Symes, supra, liability was sought based upon the alleged negligence of the Defendant's agents, who by their careless and reckless acts failed to protect that claimant. The underlying incident in Symes occurred when he was slashed on his face by another inmate at Attica. I observed there that the State of New York is not an insurer of inmate safety, but must provide reasonable protection against foreseeable risks of attack by other inmates, and cited Judge Bell's decision in Donaldson v State of New York (Claim No. 93943, Decision filed January 30, 1998), holding that liability in a claim asserting negligence on the part of the State when one inmate assaults another inmate must be predicated upon one of the following grounds: (1) the victim was a known risk and the State failed to provide reasonable protection (see, Sebastiano v State of New York, 112 AD2d 562); (2) the State had notice that the assailant was particularly prone to perpetrating such an assault and failed to take proper precautionary measures (see, Littlejohn v State of New York, 218 AD2d 833; Wilson v State of New York, 36 AD2d 559); or (3) the State had ample notice and opportunity to intervene and failed to act (see, Huertas v State of New York, 84 AD2d 650).

In the instant claim, (1) nothing before me alleges or demonstrates that Claimant was a known risk; (2) since the assailant remains unidentified, the State could not have been on notice of his assaultive propensities, nor (3) has the Claimant alleged that the State was on notice of an impending attack. Thus Claimant has totally failed to allege, let alone support, any of the three recognized grounds for holding the Defendant liable in damages for Claimant's injuries sustained in an assault by a fellow inmate. While Claimant has argued that the Defendant's demand for a bill of particulars never inquired about the identity of the assailant, that it erroneously sought particulars with regard to an intentional assault by a corrections officer, his attorney suggests that had he been asked, Claimant would have provided that information. However, in its reply, the Defendant has supplied the reports and investigative material relative to the assault upon Claimant provided by the authorities at Attica. Those documents, Exhibit B to the Reply papers, affirms Claimant's inability or refusal to identify his assailant. Thus, while the motion here does perhaps sound like one for summary judgement, and even accepting all Claimant's allegations as true, I find that the claim fails to state a cause of action. Given the soundness of the Donaldson, supra, analysis, the claim alleges nothing more than negligent and careless supervision, and essentially relies upon a theory that would require the Defendant to act as an insurer of inmate safety. The mere recitation of negligent supervision does not set forth a valid cause of action, and the mere occurrence of an assault does not lead to an inference of negligence.

Accordingly, I find that the claim herein fails to state a cause of action. The motion is granted and the claim is dismissed.

December 13, 2000
Rochester, New York

Judge of the Court of Claims