New York State Court of Claims

New York State Court of Claims

COWAN v. THE STATE OF NEW YORK, #2000-009-413, Claim No. 100517, Motion No. M-61177


Defendant brought a motion for summary judgment dismissing the claim for personal injuries suffered by claimant in an inmate assault. Claimant's sole basis for negligence, that the State violated its regulations pertaining to the double bunking of homosexual inmates, was refuted by documentary evidence. Defendant's motion was therefore granted.

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):

Nicholas V. Midey, Jr.
Claimant's attorney:
Defendant's attorney:
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney Generalof Counsel.
Third-party defendant's attorney:

Signature date:
June 13, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion for summary judgment.

The following papers were considered by the Court in connection with this motion:

Notice of Motion, Affirmation in Support, with Exhibits 1,2

Claimant's Opposition, Affidavit of Opposition, with Exhibits 3,4

Filed Papers: Claim, Answer

By his filed claim, claimant seeks damages for personal injuries allegedly sustained by him in two separate incidents involving as assault by another inmate. He alleges that the first incident occurred on March 12, 1999, when he was assaulted by an inmate sharing his cell at Gouverneur Correctional Facility. He then alleges that after being provided with a new cell mate, he was attacked by that inmate on March 13, 1999.

The basis of liability asserted against the State is alleged negligence in requiring him to be double-bunked, even though he had advised prison official that he was homosexual and that problems would occur if he was housed in a double-bunk cell. He alleges that the State had violated its regulations governing the double-bunking of inmates.

The protocols for the management of double-cell housing are set forth in 7 NYCRR Part 1701.

The State has a duty to exercise reasonable care to insure the safety of its inmates as well as to provide those inmates with reasonable protection against foreseeable risks of attacks by other inmates (Flaherty v State of New York, 296 NY 342; Sebastiano v State of New York, 112 AD2d 562). Even so, the State is not an insurer of inmate safety (Casella v State of New York, 121 AD2d 495). Furthermore, the mere occurrence of an assault on an inmate does not in and of itself give rise to an assumption of negligence (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711).

In this case, claimant bases his claim of negligence against the State by alleging that the State breached its own established regulations by permitting claimant, a homosexual, to be double-bunked.

Upon his arrival at Gouverneur Correctional Facility on March 3, 1999, documentary evidence submitted with this motion establishes that a "screening and physical assessment for placement in a double cell" was completed on that date, as required by § 1701.5(c). The appropriated form was completed as required by § 1701.5(c)(6)(iii). Additionally, a "double-cell information sheet" was also completed that same day, as required by § 1701.5(e). (See Exhibits F and G to Items 1, 2).

On the basis of this assessment and review required to be performed by existing regulations, claimant was deemed suitable for double-cell housing.

Additionally, homosexuality in and of itself does not render an inmate ineligible for double-cell housing. Rather, § 1701.5(c)(4)(iv) states that an inmate is ineligible for double-cell housing if he has been "found guilty at facility disciplinary hearings of engaging in homosexual acts while incarcerated." As claimant did not have any prior history of being charged with disciplinary infractions for engaging in homosexual acts, he was not ineligible for double-cell housing under this regulation.

Defendant has therefore established by documentary evidence that it fully complied with existing rules and regulations in determining that claimant was eligible for double-cell housing. Since the sole claim of negligence made by the claimant is that the State violated its regulations in requiring him to be double-bunked, and since the State has established by documentary evidence, that it is in full compliance with such regulations governing double-cell housing in this instance, no questions of fact remain. Since the State assigned claimant to double-cell housing in full compliance with its existing regulations, the State is entitled, as a matter of law, to summary judgment dismissing the claim.

Accordingly, it is

ORDERED, that Motion No. M-61177 is hereby GRANTED; and it is further

ORDERED, that Claim No. 100517 is hereby DISMISSED.

June 13, 2000
Syracuse, New York

Judge of the Court of Claims