New York State Court of Claims

New York State Court of Claims

PASSERO v. THE STATE OF NEW YORK, #2000-011-514, Claim No. 100544, Motion No. M-61003


Synopsis


The claim is based upon allegations that the State failed to provide Claimant, an inmate with voluntary protective custody and as a result, he was assaulted by two unknown inmates.

Case Information

UID:
2000-011-514
Claimant(s):
DANIEL M. PASSERO
Claimant short name:
PASSERO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100544
Motion number(s):
M-61003
Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
Daniel M. Passero, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Dennis M. Acton, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
April 4, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The claim is based upon allegations that the State failed to provide Claimant, an inmate at Mt. McGregor Correctional Facility, with involuntary protective custody and as a result, he was assaulted by two unknown inmates. Defendant has moved to dismiss the claim on the basis that no cause of action is stated and for summary judgment.

On a motion to dismiss pursuant to CPLR 3211(a)(7), only the claim is examined to determine if a cause of action is stated and the facts alleged therein are treated as true and read in the light most favorable to claimant (Matter of Board of Educ. v State Educ. Dept., 116 AD2d 939,941). Even assuming the truth of the allegations in the claim, no cause of action is stated. The only basis offered in the claim for imposing liability is a failure to provide involuntary protective custody. Such a conclusory allegations is insufficient to state a cause of action (see Lotz v Lotz, 135 AD2d 1007). Furthermore, though the State has a duty to provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Sebastiano v State of New York, 112 AD2d 562), the claim must allege that Defendant had notice of an especially dangerous situation (see Padgett v State of New York, 163 AD2d 914). Claimant does not allege that the attack was foreseeable. In fact, in his affidavit in opposition he indicates that one or two days prior to the attack he advised personnel at the correctional facility that he was not in any danger and was not in need of protection. Inasmuch as Claimant has failed to plead all the elements of a claim, no cause of action is stated. Accordingly, the motion is granted and the claim is dismissed.


April 4, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


Papers Considered:
  1. Notice of Motion dated January 4, 2000.
  2. Affidavit in Support of Dennis M. Acton, Esq., sworn to the 4th day of January, 2000 with exhibits attached.
  3. Answering Affidavit of Daniel M. Passero sworn to the 28th day of February, 2000.