New York State Court of Claims

New York State Court of Claims

MAC v. THE STATE OF NEW YORK, #2001-015-539, Claim No. 100970


Claimant's proof at trial on fellow inmate assault and battery claim insufficient to prove State had prior notice of a foreseeable attach and failed to provide adequate protection. Claim dismissed.

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):

Claimant's attorney:
Andrew F. Plasse, P.C.By: Andrew F. Plasse, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 28, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

This is a claim to recover for personal injuries allegedly sustained by the claimant as a result of an attack upon him by fellow inmate Phillip Torres at approximately 1:45 p.m. on August 28, 1997 in the north yard of the Greene Correctional Facility, Coxsackie, New York. It is alleged, inter alia, that the defendant was negligent in that it failed to take appropriate steps to protect the claimant despite having notice of threats having been made against him and in failing to segregate inmate Torres from the claimant and other members of the general population in view of its knowledge of inmate Torres' vicious propensities. The trial of the claim was bifurcated and this decision pertains solely to the issue of liability.

Claimant was the sole witness called to testify at trial in support of his claim and testified [1]
as follows: In June 1997 claimant was sentenced to a term of imprisonment of 3 ½ to 7 years in a state correctional facility on a charge of robbery in the third degree. Claimant had been incarcerated at Rikers Island for approximately five months prior to his conviction and was transferred to Greene Correctional Facility (GCF) in July or August 1997. Claimant testified that on his first day at GCF he had a conversation with an unidentified inmate described only as a black man with dreadlocks who purportedly told him that he would be stabbed by some unidentified inmates if he went in the yard. He alleged further that he was told by this unidentified inmate that only a guard could save him. Claimant alleges that the unidentified inmate did not advise claimant who his attackers would be.
Claimant testified that the following day he spoke to an unidentified correction officer assigned to his dormitory and advised the officer of the threat against him and that he feared for his life. Claimant alleged that he told a second unidentified correction officer the same story and asked to see a sergeant. Claimant asserts that he later spoke with a sergeant whose name he did not recall but whom he described as short and older with grey hair. Claimant alleges that in a 5 - 10 minute conversation with the sergeant he requested protective custody. That same day, after speaking with the sergeant, claimant was moved to Dormitory J-2 which is located on the opposite side of the correctional facility. Claimant described the J-2 dorm as being on the north side of the facility and alleged that he remained housed at the dormitory until the date of the incident.

The witness further testified that in his conversations with the correction officers and sergeant at GCF he advised them that he had had problems with other inmates at Rikers Island and had been informed of threats against him while there.

Claimant testified that he was uncertain as to the precise date of the attack giving rise to this claim but believed that it was on Labor Day as there was a Labor Day Festival in the facility's north yard at which attendance by the inmates was mandatory. Claimant testified that he had not gone to the facility's north yard since being moved to the J-2 dormitory. Claimant alleged that on the morning in question he left the dormitory between 11:00 and 12:00 p.m.
and that upon his arrival at the north yard he spoke briefly to another inmate and was then attacked from behind and cut on the cheek by two inmates. While claimant did not see his attackers he testified, without further explanation, that he knows they were Spanish.
Claimant alleged that at the time of the incident the yard was crowded and the nearest correction officer was "some distance" away from him. He alleged further that he was not searched before entering the yard and that no search of his dormitory occurred that day.

Claimant's cross-examination was unremarkable. Following cross-examination claimant's attorney offered into evidence without objection the following exhibits: (1) a decision and order of this Court dated May 31, 2000 and filed June 8, 2000 pertaining to claimant's motion for disciplinary and psychiatric records of his alleged assailant, Phillip Torres; (2) a copy of a Department of Correctional Services unusual incident report dated 9/2/97 regarding the subject incident and (3) photocopies of logbook entries maintained by GCF with certain entries related to claimant marked with an X. After the receipt in evidence of these exhibits the claimant rested. Claimant offered no medical testimony regarding the alleged injury.

At the close of claimant's proof the defendant moved to dismiss the claim on the ground that the proof offered was insufficient to establish a prima facie showing of the defendant's negligence. The Court reserved decision on that motion. The defendant rested without calling any witnesses and renewed its motion to dismiss the claim. Decision by the Court was again reserved.

The law with regard to an assault by one inmate upon another in a state correctional facility is generally well settled. The State must provide reasonable protection from foreseeable risk of harm, including the foreseeable risk of an attack by another inmate (
Stanley v State of New York, 239 AD2d 700; Sebastiano v State of New York, 112 AD2d 562, 564). The State, however, is not an insurer of the safety of inmates and the 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; Schittino v State of New York, 262 AD2d 824). To recover on a claim alleging that DOCS personnel failed to take reasonable precautions to protect an inmate from foreseeable attack a claimant must demonstrate that he was a known assault risk (see, Sebastiano v State of New York, supra) that the State, with ample notice of a threat of attack, had an opportunity to intervene and failed to do so (see, White v State of New York, 167 AD2d 646) or that the assailant was prone to perpetrating such an assault and the State failed to take appropriate protective measures (see, Casella v State of New York , 121 AD2d 495; cf., Littlejohn v State of New York, 218 AD2d 833).
Claimant's proof essentially consists of his own testimony that an unknown fellow inmate informed him that unidentified inmates would attack him were he to enter the facility yard. According to the claimant he, in turn, informed two unidentified correction officers and an unidentified sergeant that a threat had been made against him. Claimant has failed to make the required showing. Claimant did not testify that he objected or otherwise expressed unease or reservation concerning his attendance at the festival being held in the facility's north yard. Although claimant may, in fact, have communicated to one or more correction officers that he had been informed by an unidentified inmate of a possible assault upon him by persons unknown, the information given to DOCS personnel by the claimant was so nonspecific as to time, place and identity of the proposed assailant that claimant cannot be deemed to be a known assault risk nor may the information be deemed to constitute notice of a pending attack affording DOCS an opportunity to intervene (
see, Smith v State of New York, 2001 NY Slip Op. 05674, 3rd Dept.). Furthermore, claimant failed to prove that his alleged attacker, who he identified only subsequent to the attack in a photo array (see Claimant's Trial Exhibit 2), was prone to perpetrating assaults thus invoking a heightened duty to take special precautions (Littlejohn v State of New York, supra). The alleged assailant's DOCS disciplinary record for the period 7/16/94 to 11/20/96 contains but a single reference to a charge of violent conduct arising out of an incident on 12/26/95. Such proof is not sufficient to demonstrate that the alleged assailant had a history of assaultive behavior such as to constitute notice of the inmate's violent propensities (Dizak v State of New York, 124 AD2d 329).
The defendant's motion to dismiss for failure to establish prima facie the defendant's negligence is granted and the claim is dismissed.

All motions not previously decided are denied.

Let judgment enter accordingly.

August 28, 2001
Saratoga Springs, New York

Judge of the Court of Claims

[1]Neither party provided a transcript of the trial testimony and the summary of the testimony set forth herein was derived from the Court's trial notes.