Reply Affirmation, with Exhibits 4
By his claim, filed July 30, 1997, claimant asserts a claim of negligence
against the State. He seeks damages for injuries suffered by him as a result of
an assault against him by another inmate while he was incarcerated at Auburn
Correctional Facility. The assault allegedly occurred on February 2, 1997.
Defendant now brings this motion seeking an order of summary judgment
dismissing the claim, contending that the claimant has not produced any evidence
whatsoever to establish liability against the State for negligence in this
inmate assault. Specifically, defendant relies upon deposition testimony of the
claimant, in which claimant admitted that he did not know the alleged assailant
prior to the incident herein, that he had no particular problems with the
assailant prior to the incident, and had never informed anyone at the
correctional facility prior to the incident that he had any problems with his
Summary judgment is the procedural equivalent of a trial (Andre v
Pomeroy, 35 NY2d 361) and should be granted only when it has been
established that there is no triable issue (Moskowitz v Garlock, 23 AD2d
943). The role of the Court, therefore, on a motion for summary judgment is not
to resolve material issues of fact, but instead is to determine whether any such
issues exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395).
If such material issues of fact exist, the motion for summary judgment must be
denied (Rotuba Extruders v Ceppos, 46 NY2d 223).
With reference to this claim, it is well settled that the State must provide
inmates with reasonable protection against foreseeable risks of attack by other
inmates (Flaherty v State of New York, 296 NY 342). The State, however,
is not an insurer of an inmate's safety, and the mere fact that an assault
occurred does not give rise to an inference of negligence (Padgett v State of
New York, 163 AD2d 914, lv denied 76 NY2d 711). By his testimony at
his deposition, claimant will not be able to establish that he was a known
assault risk based upon a prior history with his assailant. However, negligence
claims against the State in actions involving assaults by other inmates have
been established, for example, when the State had notice of an assault threat
with an opportunity to intervene (Huertas v State of New York, 84 AD2d
650), or that the assailant had a prior history of assaults for which the State
failed to take appropriate measures to correct (Littlejohn v State of New
York, 218 AD2d 833: Wilson v State of New York, 36 AD2d 559).
As a result, it is evident that significant issues of fact exist which preclude
this Court from granting summary judgment.
Defendant also seeks to have this claim dismissed based upon the failure of the
claimant to serve and file his note of issue and certificate of readiness in a
timely manner. Pursuant to an amended scheduling order of this Court dated May
16, 2000, claimant was directed to serve and file a note of issue and
certificate of readiness on or before October 2, 2000. Claimant's attorney
acknowledges that the note of issue has not been served or filed, even though
the date by which this was to be accomplished has passed. Claimant's attorney
states that he was unable to do so since depositions of defendant's
knowledgeable witnesses had not been scheduled or completed. Pursuant to the
amended order of this Court, those depositions were to be completed on or before
August 1, 2000.
Prior to this motion, there was no attempt by claimant to either comply with or
seek an extension of the amended scheduling order. Furthermore, there appears
to have been minimal effort, at best, by claimant and/or his attorney to prepare
this case for trial. Based upon this apparent lack of effort, the Court is
sorely tempted to dismiss this claim for failure to comply with the amended
scheduling order. Instead, in hopes that this claim may be decided on the
merits, the Court will grant claimant one last extension.
Accordingly, it is
ORDERED, that Motion No. M-62576 is hereby DENIED; and it is further
ORDERED, that the deposition of defendant's knowledgeable witnesses shall be
completed on or before May 15, 2001; and it is further
ORDERED, that claimant shall serve and file a note of issue and certificate of
readiness on or before June 1, 2001; and it is further
ORDERED, that failure to comply with the directives contained herein shall
result in the dismissal of the claim, sua sponte.