New York State Court of Claims

New York State Court of Claims

PERILLI v. THE STATE OF NEW YORK, #2000-017-019, Claim No. 99042, Motion No. M-61625


Synopsis


Defendant's motion for summary judgment dismissing the claim was granted in this claim alleging an assault on an inmate by a fellow inmate, given cliamant's failure to establish a triable issue that the attack was foreseeable or that the frisk and scanning procedures undertaken before the assailant was permitted to enter the recreation yard where the attack occurred were negligently performed

Case Information

UID:
2000-017-019
Claimant(s):
JOSEPH PERILLI
Claimant short name:
PERILLI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99042
Motion number(s):
M-61625
Cross-motion number(s):

Judge:
ANDREW P. O'ROURKE
Claimant's attorney:
Michael L. Macklowitz
By: Lawrence M. Hoffman, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: Vincent M. Cascio, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 17, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 and 2, were read and considered by the Court on


defendant's motion for summary judgment:


Notice of Motion, Attorney's Affirmation, Memorandum of Law, Affidavit, and Exhibits..............................................................................................................1


Affirmation in Opposition and Exhibit...................................................................2

Claimant filed the instant Claim against the State to recover for the injuries sustained in an attack by a fellow inmate while he was housed in the Green Haven Correctional Facility. Specifically, claimant contends that defendant was negligent in failing to search inmate Sean Ryan, the assailant, thus allowing him to enter the SHU yard with a razor blade, causing serious harm to claimant (see, Affirmation in Opposition, p. 2). Defendant now moves for summary judgment dismissing the claim pursuant to CPLR 3212(a).

Summary judgment is a drastic remedy and should not be granted where there is doubt as to the existence of a triable issue (Andre v Pomeroy, 35 NY2d 361, 364). The proponent of a summary judgment motion must submit proof in evidentiary form sufficient to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Center, 64 NY2d 851). In assessing this proof, all favorable inferences must be drawn in favor of the non-moving party.

Viewed in the light most favorable to claimant, the non-movant here, the papers submitted in connection with this motion establish that claimant was assaulted and repeatedly slashed about the face, head, neck, back and left arm by a fellow inmate while in the Special Housing Unit ("SHU") recreation yard. The inmates, who were not shackled or handcuffed, were in the SHU recreation yard for their one hour of permissible recreation time. Before an inmate enters the recreation yard, it was standard procedure at the facility to pat frisk and manually scan the inmates with a metal detector (see, Notice of Motion, Tierney Deposition, Exh. D, pp. 11-12). The recreation yard, measuring about 30 by 45 feet, is enclosed by a 12 foot brick wall, metal wires surrounding the top of the walls, and security cameras surveying the yard (see, Notice of Motion, Perilli Deposition, Exh. C, p. 18). Correction officers supervise the inmates from within the frisk area through a large window (see, Notice of Motion, Tierney Deposition, Exh. D, p. 18). The window, measuring four and a half to six feet high, gives the officer a view of the entire yard (see, Notice of Motion, Tierney Deposition, Exh. D, p. 21).

At the time of the assault, there were three inmates, including claimant, in the SHU recreation yard. Suddenly, without provocation or warning, the inmate (identified as Sean Ryan) advanced toward the claimant, pulled out a razor, and started to slash claimant about the upper body (see, Notice of Motion, Perilli Deposition, Exh. C, p. 20). Corrections officers entered the yard and ordered the inmates to separate (see, Notice of Motion, Perilli Deposition, Exh. C, p. 28). Claimant was taken to the sergeant's office, where claimant received immediate medical attention from a male nurse (see, Notice of Motion, Tierney Deposition, Exh. D, p. 28). Inmate Ryan was taken to the "strip frisk room," where he was searched for weapons (see, Notice of Motion, Tierney Deposition, Exh. D, p. 30). No weapons were found on inmate Ryan (see, Notice of Motion, Tierney Deposition, Exh. D, p. 31). Correction Officers searched the yard and found a sharpened metal weapon on the roof of a building, adjacent to the recreation yard (see, Notice of Motion, Tierney Deposition, Exh. D, p. 25).

With respect to inmate assaults, the law is well settled that the State must provide reasonable protection against foreseeable risks of attack on inmates by fellow inmates (see, Flaherty v State of New York, 296 NY 342; Colon v State of New York, 209 AD2d 842). However, given the continuing potential for violence among inmates, the State cannot be an insurer of inmate safety, and the fact that an attack occurred does not alone give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeably dangerous situation (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711).

As a general proposition, liability for an assault in the prison setting may be predicated on one of the following three grounds: (1) where the victim has known enemies or at a known risk and defendant failed to provide reasonable protection (see, Sebastiano v State of New York, 112 AD2d 562): (2) where the State had notice that the assailant was dangerous but failed to take proper precautions (see, Littlejohn v State of New York, 218 AD2d 833); or (3) where the State had ample notice and opportunity to intervene in the attack, but failed to act (see, Huertas v State of New York, 84 AD2d 650).

Claimant does not allege facts to support any of these three grounds of liability. In fact, claimant testified at his pre-trial deposition that he did not have any known enemies, did not have an enemies list at Green Haven, and was not at a known risk of attack (see, Notice of Motion, Perilli Deposition, Exh. C, p. 21). Specifically, claimant denied having any problems with or receiving any threats from inmate Ryan (see, Notice of Motion, Perilli Deposition, Exh. C, p. 22-23). At pre-trial deposition, Sergeant Tierney of Green Haven Correctional Facility, testified that before permitting claimant to enter the yard he asked claimant whether he had any problems with the men in the yard, including inmate Ryan, and claimant denied having any problems (see, Notice of Motion, Tierney Deposition, Exh. D, p. 37). By all accounts, this attack was sudden and unexpected, and correction officers intervened as soon as they had notice of the attack (see, Notice of Motion, Tierney Deposition, Exh. D, p. 20; Notice of Motion, Incident Report, Exh. F). Additionally, there is no evidence that inmate Ryan, who was identified as the inmate involved in the slashing, was involved in any misbehavior indicating that he was prone to commit such an assault before the incident in question (see, Notice of Motion, Tierney Deposition, p. 34).

Notwithstanding the foregoing, claimant argues that a triable issue of fact exists as to whether the State was negligent in the pat frisk and metal search of inmate Ryan. This argument is unavailing. Sergeant Tierney testified that it is procedure to pat frisk and scan with a hand scanner all inmates entering the SHU yard (see, Notice of Motion, Tierney Deposition, p. 11), but asserted that it is impossible for this procedure to detect a weapon every time because of an inmate's clever way of concealing contraband (see, Notice of Motion, Tierney Deposition, p. 33). Indeed, claimant has failed to allege any facts to contradict Sergeant Tierney's testimony that all inmates are pat-frisked and scanned prior to their admittance to the yard. The Court finds that the pat frisk and scanning conducted here was a reasonable measure to provide inmates protection under the circumstances (see, Flaherty v State of New York, 296 NY 342, supra) and that claimant has failed to establish that a triable issue exists as to whether those procedures were negligently conducted on the assailant here.

Accordingly, the Court finds, after viewing all of the evidence submitted in this motion for summary judgment in the light most favorable to claimant, that defendant has sufficiently demonstrated the absence of any material issues of fact. Thus, defendant's motion for summary judgment is GRANTED and Claim No. 99042 is DISMISSED.


July 17, 2000
White Plains, New York

HON. ANDREW P. O'ROURKE
Judge of the Court of Claims