New York State Court of Claims

New York State Court of Claims

CUETO v. STATE OF NEW YORK, #2000-006-M62537, Claim No. 100516, Motion Nos. M-62537, CM-62765


Synopsis



Case Information

UID:
2000-006-M62537
Claimant(s):
LOUIS CUETO
Claimant short name:
CUETO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100516
Motion number(s):
M-62537
Cross-motion number(s):
CM-62765
Judge:
EDGAR C. NeMOYER
Claimant's attorney:
LOUIS CUETO, PRO SE
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
By: Gregory Miller, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 13, 2000
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimant's motion for an order of this court granting him summary judgment, and defendant's cross-motion for an order granting it summary judgment dismissing the claim, both motions pursuant to CPLR Rule 3212. In deciding this motion the court has read and reviewed the following papers:
  1. Notice of motion dated September 19, 2000 and filed September 29, 2000.
  1. Claimant's affidavit sworn to September 19, 2000 in support of the motion.
  1. Defendant's notice of cross-motion dated November 20, 2000 and filed November 27, 2000.
  1. Affidavit of Gregory Miller, Esq., Assistant Attorney General, sworn to November 20, 2000 and filed November 27, 2000, along with exhibits attached thereto, in opposition to the motion and in support of the cross-motion.
  1. Claim verified June 6, 1999 and filed June 9, 1999.
  1. Answer verified July 20, 1999 and filed July 21, 1999.
  1. Defendant's response to claimant's request for interrogatories dated April 28, 2000 and filed May 2, 2000.

This claim arose on May 4, 1999 while claimant was an inmate at Lakeview Correctional Facility and housed in the Special Housing Unit. Claimant alleges he was the victim of an unprovoked assault upon him at approximately 1:45 a.m. on May 4, 1999 by inmate Kelly, who had been placed in claimant's cell and double bunked with him. Thereafter, that same day at approximately 8:30 p.m., claimant alleges he was the victim of an unprovoked assault upon him by inmate Green, who subsequently had been placed in claimant's cell to be double bunked with him. Claimant alleges the defendant was negligent in failing to adequately protect him from these assaults. Claimant further maintains the defendant was aware inmates Kelly and Green had a history of assaultive behavior, and failed to take proper precautionary measures to protect claimant from them.

Summary judgment is the procedural equivalent of a trial, and is considered by the courts to be a drastic remedy. Andre v Pomeroy, 35 NY2d 361; Moskowitz v Garlock, 23 AD2d 943. CPLR Rule 3212 (b) requires the denial of a summary judgment motion "if any party shall show facts sufficient to require a trial of any issue of fact." The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Matter of Redemption Church of Christ of Apostolic Faith v Williams, 84 AD2d 648, 649; Greenberg v Manlon Realty, Inc., 43 AD2d 968, 969). Winegrad v New York University Medical Center, 64 NY2d 851, 853. On a motion for summary judgment, the court is required to accept the version of facts most favorable to the non-moving party. Strychalski v Mekus, 54 AD2d 1068. As has often been said, a motion for summary judgment is not issue determinative, but rather a search to determine if triable issues of fact exist. It is with these principles in mind that the court must examine the proof before it on this motion.

In support of his motion for summary judgment, claimant has alleged the defendant did not properly screen inmates Kelly and Green for double bunking with claimant. Claimant states that both inmates Kelly and Green were known Blood gang members and claimant was a Latin King gang member. Claimant states the defendant was aware of continuing threats and assaults between members of the Blood gang and Latin King gang prior to the assaults upon claimant. According to claimant, because of defendant's prior knowledge of the assaultive tendencies of inmates Kelly and Green, and their gang affiliations, the defendant, in placing these two inmates with claimant, failed to adequately protect him.

In response to claimant's allegations, defendant states that the Department of Correctional Services does not recognize gang affiliations. Defendant has also submitted the affidavit of Captain David W. Bastian, who is an employee of the New York State Department of Correctional Services. Captain Bastian states he has reviewed the records of claimant during his incarceration at Lakeview Correctional Facility. According to Captain Bastian, inmates Kelly and Green were not on the claimant's enemy list. Captain Bastian further states that, prior to inmates Kelly and Green being double-celled with claimant, the correctional facility performed a Special Housing Unit screening and physical assessment for double-cell placement. Captain Bastian maintains this screening and physical assessment determined inmates Kelly and Green were not considered to be highly assaultive.

Claimant's allegations in his claim and affidavit, supporting the summary judgment motion, are general and conclusory. Claimant has not submitted any evidentiary facts to support his allegations of negligence. Consequently, there is nothing before the court which would permit it to grant summary judgment in favor of the claimant. Furthermore, as will be discussed later, there are issues of fact present to be determined by a trial of the claim.

Defendant must provide inmates with reasonable protection against foreseeable risks of attack by other inmates. Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562. However, the defendant is not an insurer of an inmate's safety, and the mere fact than an assault occurs does not give rise to an inference of negligence. Padgett v State of New York, 163 AD2d 914, lv denied, 76 NY2d 711. The claimant must affirmatively show by competent evidence that the injury complained of was caused by some breach of duty on the part of the defendant. Mochen v State of New York, 57 AD2d 719. Claimant must prove either that the defendant failed to protect him from another inmate who was known to be dangerous to him, Sebastiano v State of New York, supra; or defendant had notice that the assailant was particularly prone to perpetrating such an assault and failed to take proper precautionary measures, Littlejohn v State of New York, 218 AD2d 833; Wilson v State of New York, 36 AD2d 559; or the defendant had ample notice and opportunity to intervene and failed to act, Huertas v State of New York, 84 AD2d 650.

The basis of defendant's cross-motion for summary judgment dismissing the claim is defendant's assertion that prior to the date of this incident, May 4, 1999, inmates Kelly and Green were not on claimant's enemy list, and further were not considered to be highly assaultive. Defendant also maintains inmates Kelly and Green were properly screened for being double-celled with claimant. This last point appears to be merely a self serving declaration, in that the Department of Correctional Services maintains it properly did its job. It should be noted, no facts are set forth as to the procedure followed in the screening and physical assessment for placement in a double-cell. The defendant, in this assertion, also relies upon a conclusory and general allegation without any supporting evidentiary facts. Furthermore, defendant's response to claimant's request for interrogatories belie its position on this summary judgment motion.

Defendant states in its response to claimant's request for interrogatories that inmate Kelly did not have an assaultive history, but nevertheless he had been found guilty of unauthorized gang membership three times prior to May 4, 1999. With regard to inmate Green, the defendant stated in its interrogatories he had been found guilty of unauthorized gang membership five times prior to May 4, 1999. Defendant also acknowledged in an interrogatory that inmate Green had been found guilty for assault and/or fighting three times prior to May 4, 1999. These responses support claimant's position the defendant was aware both inmates Kelly and Green were gang members, even though defendant does not recognize gang affiliations.

As previously stated, the defendant could be found negligent in failing to adequately protect an inmate claimant if it was proven it had notice the assailant was particularly prone to perpetrating such an assault and failed to take proper precautionary measures. At the least, because of inmate Green's prior assaultive behavior, a question of fact to be determined by a trial of the claim has been raised, as to whether defendant was required to and failed to take proper precautionary measures to protect claimant from an assailant prone to perpetrating an assault upon another inmate. Additionally, even though defendant maintains it does not recognize gang affiliations, the court believes a question of fact exists as to defendant's responsibility for placing inmates together, when defendant is aware of the inmates' claimed opposing gang memberships.

Accordingly, for the reasons stated herein, it is

ORDERED, that both claimant's motion and defendant's cross-motion for summary judgment are denied on the ground that triable issues of fact exist to be determined by a trial of this claim.


December 13, 2000
Buffalo, New York

HON. EDGAR C. NEMOYER
Judge of the Court of Claims