New York State Court of Claims

New York State Court of Claims

FAUST v. THE STATE OF NEW YORK, #2001-007-086, Claim No. 101112, Motion No. M-62775


Defendant moved to dismiss the claim. The claim alleges that defendant failed to provide proper protection to claimant, an inmate who had previously cooperated with prison personnel. Motion denied.

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):

John L. Bell
Claimant's attorney:
Walter, Thayer & Mishler, P.C. (Lanny E. Walter, Esq., of Counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (G. Lawrence Dillon, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
February 13, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has made an application for an order dismissing the claim. The return date of the motion was January 19, 2001. The following papers were read and considered by the court:

Notice of Motion, Affirmation of G. Lawrence
Dillon, Esq., Annexed Exhibits 1, 2, 3

Affirmation in Opposition of Lanny E. Walter,
Esq., Annexed Exhibits, Memorandum of Law 4, 5, 6

Reply Affirmation of G. Lawrence Dillon, Esq.,
Annexed Exhibits 7, 8

Filed Papers: Claim, Answer 9, 10

On October 24, 1997, claimant was attacked by three other inmates while incarcerated at Gouverneur Correctional Facility, St. Lawrence County. The assailants cut claimant's left cheek and neck with a sharp instrument. Claimant alleges that he had cooperated with prison officials on two occasions prior to the subject assault, that information about his cooperation had been learned by other inmates, that he had been previously assaulted by inmates because of his cooperation, that he had been housed in protective custody at various times because he was a known risk in the inmate population, that he had warned prison officials at Gouverneur two times in writing during the month prior to the assault that he had learned information indicating that he was at risk in the general population at Gouverneur and that he was nevertheless not removed from general population or transferred to another facility. Defendant argues in the current motion that such allegations fail to state a cause of action. Defendant seeks dismissal pursuant to CPLR 3211(a)(7) or, alternatively, summary judgment dismissing the claim (Dillon Affirmation, par. 2 & 3).

When faced with a motion to dismiss for failure to state a cause of action, the test the court must employ in the Third Department is to accept the allegations in the claim as true and disregard evidence submitted by defendant (Henbest & Morrisey v W. H. Ins. Agency, 259 AD2d 829; Matter of FYM Clinical Lab. v Perales, 147 AD2d 840, affd 74 NY2d 539). Clearly, the allegations in the claim, as outlined previously, state a cause of action (see, e.g., Sebastiano v State of New York, 112 AD2d 562; Doe v State of New York, Ct Cl, Feb. 15, 1996 [Claim No. 80696-A], Bell, J.). The better relief to seek at this juncture of the litigation, where disclosure has been completed and a note of issue has been filed, is summary judgment (see, e.g., Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:8, at 18-19). Since both parties expressly acknowledged in their motion papers that the court would be addressing the alternative relief of summary judgment (see, e.g., Dillon Affirmation, par. 3; Walter Affirmation, par. 1), it is proper for the court to consider the merits of the summary judgment motion without affording notice to the parties indicating that a motion pursuant to CPLR 3211(a)(7) is being converted to one for summary judgment (see, e.g., Henbest & Morrisey v W. H. Ins. Agency, supra, at 830; Four Seasons Hotels v Vinnik, 127 AD2d 310, 320).

Summary judgment is frequently characterized as a "drastic remedy," which should be employed only when it is clear no triable issues exist (Andre v Pomeroy, 35 NY2d 361; Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732). The proponent of the motion bears the threshold burden of tendering sufficient evidence to eliminate any material issues of fact and establishing the propriety of judgment as a matter of law (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Tiano v Lane, 260 AD2d 908). If the movant meets the threshold burden, the nonmoving party must step forward with evidence demonstrating a triable issue of fact to defeat the motion (Moran v Technical Bldg. Servs., 258 AD2d 697; Hasbrouck v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916). The evidence presented is viewed in the light most favorable to the party opposing summary judgment (Barker v Kallash, 63 NY2d 19, 23; Currier v Wiltrom Assocs., 250 AD2d 956).

The law regarding inmate-on-inmate assaults is well-established. The State must provide inmates reasonable protection against foreseeable risks of attack by other inmates (Flaherty v State of New York, 296 NY 342; Blake v State of New York, 259 AD2d 878). The State is not, however, an insurer of the safety of inmates and the fact that an assault occurs does not give rise to an inference of negligence (Schittino v State of New York, 262 AD2d 824; Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711). One of the accepted theories upon which liability may be premised is that the claimant was a known risk and the State failed to provide reasonable protection under the prevailing circumstances (see, e.g., Sebastiano v State of New York, supra; Doe v State of New York, supra).

Claimant has presented evidence[1] indicating that, in September 1994, while he was incarcerated at Franklin Correctional Facility, he informed a correction officer that an inmate was being threatened by members of the prison gang known as "Latin Kings." Members of the Latin Kings learned that claimant had provided such information to prison personnel. Inmates who cooperate with prison authorities frequently find themselves is disfavor with their fellow inmates. Recognizing the seriousness of the situation, claimant was permitted to enter voluntary protective custody.

Thereafter, claimant was transferred to Wyoming Correctional Facility, ostensibly in an effort to find a facility where he could return to general population. On February 24, 1995, however, claimant's face was slashed by two inmates at Wyoming. He was again placed in protective custody and was eventually transferred to Orleans Correctional Facility. While at Orleans, claimant reportedly disclosed to prison staff that members of the Latin Kings were hiding knives in the laundry area. On June 10, 1996, inmates at Orleans threw dry bleach in claimant's face and punched him several times.

Following the assault, claimant was placed in protective custody at Orleans. He was eventually transferred to Collins Correctional Facility. While at Collins, claimant allegedly learned that members of the Latin Kings at such facility had recognized him and were planning to assault him. Claimant relayed such information to facility personnel and he was promptly placed on administrative segregation until he was transferred to Gouverneur.

At Gouverneur, claimant was assigned to work as a teacher's aid in the masonry shop. An inmate housed in the special housing unit near the masonry shop purportedly stated to claimant, "I know who you are now, we'll get you." Claimant states that the inmate who made the comment was a leader of the Latin Kings at Gouverneur. Claimant immediately wrote a letter, dated September 23, 1997, to his prison counselor, Diane Kogut, stating as follows:
"I think I have a problem brewing again. You know all about my trouble with the L. Kings.

I've been bounced all over the State because of the trouble I have with them, well it looks like it has caught up to me here also.

One of them is in the S.h.U., he is one of the crown's (head person). They call him "flame" and I think his name is Cruz, he used to lock in B-2.

Anyway he seen me by the masonry back door and yelled "I know who you are now, we'll get you!"

He was supposed to do about six or seven months but now I found out he is number 2 or 3 to get out because they let people out as they need room, so now what do I do?

I also wrote DSS Sweeney. I hope I don't have to leave here. I'm finally doing okay and I'm finally into some programming.

Thank you very much for your care and concern.


Cliff Faust 9219372 F-1-16

P.S. I hope he don't spread the word around before he gets out!"

Ms. Kogut testified at her examination before trial that, among other things, she gave the letter from claimant to a member of Gouverneur's security staff, Lt. Steven Don. Lt. Don was unable to specifically recall at his examination before trial what he did after receiving the letter from Ms. Kogut. On October 7, 1997, claimant followed up with another letter to Ms. Kogut, as follows:
"I think that you better put me in for a transfer and get me out of here as soon as possible.

I really believe I'm going to have trouble with the L-Kings again real soon, I believe that the word got out on me here, either from inmate Cruz or through a letter.

I have an early warning system I set up my self, I always get in good with a few of the Spanish inmates, this way if their attitude changes toward me I know somethings wrong, since Friday I've got the cold shoulder and none of the Kings are talking to me or acknowledging me at all.

I don't go to the yard and word was sent to me to meet one of them out there, needless to say I didn't go. I'm getting the looks and I feel the tension.

Please get me out of here A.S.A.P."

Claimant was not moved to protective custody or transferred to another facility and, on October 24, 1997, he was assaulted.

The evidence presented in the papers before the court creates factual issues that must be resolved at trial. Claimant has set forth a series of events which, if proven at trial, could implicate culpable conduct by defendant. Indeed, the court notes that, in a case with some similarities to the current case, the court found against defendant following a trial and awarded damages to the claimant (Doe v State of New York, supra). The court is not persuaded that it would be proper to conclude at this juncture that defendant's conduct was reasonable under the prevailing circumstances as a matter of law. A trial is necessary so that all the relevant facts and circumstances may be weighed and considered.

It is

ORDERED that defendant's motion is denied.

February 13, 2001
Plattsburgh, New York

Judge of the Court of Claims

[1] As previously stated, all facts are construed for purposes of this motion in favor of the nonmovant, claimant.