New York State Court of Claims

New York State Court of Claims

MATTHEWS v. THE STATE OF NEW YORK, #2002-010-040, Claim No. 103168, Motion Nos. M-64872, CM-65329


Synopsis



Case Information

UID:
2002-010-040
Claimant(s):
LEE MATTHEWS
Claimant short name:
MATTHEWS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103168
Motion number(s):
M-64872
Cross-motion number(s):
CM-65329
Judge:
Terry Jane Ruderman
Claimant's attorney:
ARLEN S. YALKUT AND KENNETH D. LAW, ESQS.By: Arlen S. Yalkut, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 11, 2002
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-4 were read and considered by the Court on defendant's motion for summary judgment dismissing the claim and claimant's cross-motion for summary judgment on the issue of liability:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits.............2

Defendant's Affirmation in Support of State's Motion and in Opposition to Claimant's Cross-Motion.........................................................................................3

Claimant's Reply Affirmation..................................................................................4

Claim No. 103168 alleges that at approximately 9:15 p.m., on July 6, 2000, during claimant's incarceration at Sing Sing Correctional Facility (Sing Sing), Orlando Rodriguez, another inmate, stabbed claimant in the head with a four inch metal screw while they were in Sing Sing's recreation yard (Defendant's Notice of Motion, Ex. A). When the attack occurred, the correction officers on duty were gathering the inmates to exit the yard at a distance of 35 to 40 feet from claimant (Defendant's Notice of Motion, Ex. D, p. 57). The officers responded to claimant "a minute" after the assault (Id. at 59).
Defendant's Summary Judgment Motion
Defendant seeks summary judgment dismissing the claim on the grounds that claimant cannot establish that defendant had notice that either claimant was a known risk or that Rodriguez was particularly prone to committing such attack and that defendant had notice and an opportunity to intervene, but failed to take reasonable measures to prevent the attack.

In support of its application, defendant cites to claimant's examination before trial (EBT) testimony that, prior to the attack, he had never been assaulted or threatened; he had no prior discussions or altercations with Rodriguez; he did not fear Rodriguez; nor was claimant in fear for his safety (Defendant's Notice of Motion, Ex. D, pp. 13-15, 17, 23-25, 34). Defendant also submits an affidavit of an Inmate Records Coordinator who searched Department of Corrections records and found that, from the time that Rodriguez was taken into custody on December 10, 1999 until the date of the incident July 6, 2000, there were no Misbehavior Reports issued to Rodriguez for any type of misconduct, either violent or otherwise (Defendant's Notice of Motion, Ex. F). Defendant cites to claimant's EBT testimony regarding the circumstances of the assault to establish that, prior to the attack, claimant walked past several security staff members and did not ask for protection because he "didn't have any reason" to fear that Rodriguez would attack claimant (Defendant's Notice of Motion, Ex. D, pp. 44-46). Additionally, defendant argues that claimant's testimony established that defendant did not have notice and an opportunity to intervene because, as claimant testified, he was attacked while leaving the yard through the gate, when Rodriguez "just came from no where [sic]" and assaulted claimant (Id. at 42-52). The nearest correction officers were "on the other side of the gate rounding people up to go back in the facility" at a distance of "thirty-five, 40 feet" from claimant (Id. at 57). The officers responded to claimant "a minute" after the attack (Id. at 59).
Claimant's Cross-Motion for Summary Judgment
In opposition to defendant's motion, claimant does not argue that defendant had notice that claimant was a known risk or that claimant feared Rodriguez and gave defendant notice of such fear and yet defendant failed to take steps to prevent the attack. Instead, claimant argues that, because Rodriguez was serving a 20 year sentence for charges which included aggravated assault on a Peace Officer, defendant had notice of Rodriguez's propensity to commit such an assault.

Principally, claimant opposes defendant's motion and cross-moves for summary judgment on the theory that defendant was negligent in its failure to detect Rodriguez's possession of the metal screw prior to the attack. Claimant argues that the only way that the screw could have been carried into the yard was through the negligence of defendant in: 1) permitting the walk-through metal detectors to be inoperative for about a month; 2) permitting an inmate to pass into the yard without being challenged by an officer or 3) the contraband was introduced in the area by a correction officer purposefully (Affirmation in Support of Cross-Motion, ¶ 36).

In support of the first proposition, claimant argues that the records annexed to his cross-motion indicate that:
"A Block Bridge detector was ‘not working' from 6/17/99 through 7/3/99. On July 4, 1999, a work order was submitted every day through July 9, 1999 including July 6, 1999 the day in question. On July 9, 1999 another work order was submitted and that metal detector was not working until July 15, 1999. According to this record there was no metal detection screening for approximately one month. Another document which appears to be inspection reports states to the contrary that the ‘metal detector appear operable' [sic]. The Defendant does not provide any information to explain this serious disparity" (emphasis added).

(Id. at ¶31) Notably, claimant's arguments and records refer to the year 1999, one year prior to the incident in issue. The EBT testimony of Correction Officer Antonio Fonseca, who was on duty when claimant was attacked, indicates that he does not recall whether the metal detector was functioning (Defendant's Notice of Motion, Ex. E, p. 105). Fonseca also testified that it was possible for a metal weapon to be brought into the yard if the correction officer assigned to the post did not make a proper observation (Id. at 106). Fonseca did not know who was assigned to the post (Id. at 103). Significantly, defendant does not offer any proof that the detector was functioning nor does defendant submit the EBT testimony of the officer assigned to the post.

As to the third proposition, claimant concedes that, "there is no direct proof of the third possibility" (Affirmation in Support of Cross-Motion, ¶ 36).

To prevail on a motion for summary judgment, the moving party must establish its cause of action or defense sufficiently to warrant a court directing judgment in its favor as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (Andre v Pomeroy, 35 NY2d 361, 364). The Court of Appeals has repeatedly cautioned, "even in those negligence cases in which ‘the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law'" (Ugarriza v Schmieder, 46 NY2d 471, 475 quoting Andre v Pomeroy, supra at 364; see, Davis v Federated Dept. Stores, 227 AD2d 514).

The State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks of harm, including risk of attack by other inmates (see Smith v State of New York, 284 AD2d 741,742). The State, however, is not an insurer of inmate safety (see Auger v State of New York, 263 AD2d 929). The mere occurrence of an unprovoked, unexplained attack by another inmate, with whom claimant had no prior confrontations, does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeably dangerous situation (see Stanley v State of New York, 239 AD2d 700; Roudette v State of New York, 224 AD2d 808). Nor does the fact that a correction officer may not have been present when claimant was assaulted give rise to an inference of negligence because unremitting supervision is not required (Sanchez v State of New York, 288 AD2d 647,649; Colon v State of New York, 209 AD2d 842, 844).

Upon review of all the papers submitted on the motion and cross-motion, the Court finds that it has been sufficiently established that: 1) claimant was not a known risk; 2) Rodriguez was not known to be prone to such assaultive conduct and 3) defendant did not have notice and an opportunity to intervene to prevent the attack (see Sanchez v State of New York, 288 AD2d at 648-49 [no issue of fact to preclude granting defendant summary judgment where the attack was a complete surprise to claimant and there was no proof that claimant was known to be at risk; that his assailant was known to be dangerous; or that closer supervision might have prevented the attack]).

However, an issue of fact does remain as to what security measures were in place on the date of the assault and whether defendant failed to provide adequate supervision in the yard (see Blake v State of New York, 259 AD2d 878 [defendant was negligent in failing to protect claimant from being assaulted with a sharp object by another inmate in the recreation yard]; Huertas v State of New York, 84 AD2d 650, 651 [adequate and proper supervision by correction officers reasonably attentive to their duties would likely have prevented attack]). The Court is mindful that whether metal detectors were properly functioning on that date is not dispositive on the issue of negligence because defendant has no duty to provide metal detectors; however it is relevant in addition to what other measures were employed on the date in issue.

Accordingly, defendant's motion and claimant's cross-motion are DENIED and the matter shall be set down as soon as practicable for a trial on the issue of liability based solely upon whether defendant breached its duty to provide reasonable protection in the yard.


July 11, 2002
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims