New York State Court of Claims

New York State Court of Claims

DALGETTY v. THE STATE OF NEW YORK, #2002-019-009, Claim No. 94527


Claimant, a pro se prisoner, alleges negligent supervision due to an attack by an unknown assailant. Claim dismissed. Claimant did not sustain burden of proof and failed to establish a prima facie case of negligent supervision.

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:
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
June 12, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Enrico Dalgetty, an inmate appearing
pro se, alleges that he was injured by an unknown assailant, due to the misconduct of the State of New York (hereinafter "State"), its officers, agents, or employees, by failing to properly protect; to provide adequate number of guards; and to supervise Claimant while he was lawfully in the custody of the New York State Department of Correctional Services at the Elmira Correctional Facility (hereinafter "Facility"). The trial of this Claim was held at the Facility on May 29, 2002.

At trial Claimant testified that on April 8, 1996 at approximately 4:25 p.m., he was lawfully in the northwest handball court section of the Field House talking to another inmate by the name of Roger Atkins. He, Atkins, and the other inmates in the Field House were being called back to their cell block units, and upon commencing his return to the unit he was cut on the right side of his face, necessitating medical treatment. It was Claimant's position at trial that if the yard and the Field House had better supervision during call back to the housing units, his injury would have been deterred. Claimant further testified that he later learned, upon information and belief, that his assailant was one Tyshan Gray an inmate with whom Claimant had no prior problems or contact. It was Claimant's position that the Field House area and the yard should be better staffed at call back times and that the guards that were present that day should have been on higher alert because in Claimant's position "that's when all assaults occur".[1]
Claimant admitted at trial that at a subsequent disciplinary hearing he was sentenced to fifteen days in keeplock for not reporting this very injury at the time it occurred, contrary to the rules and regulations of the Facility.

With respect to Claimant's negligence cause of action, it is well-settled that the State is not the insurer of the safety of inmates, although it must provide reasonable protection against foreseeable risks of attack by other inmates. (
Sebastiano v State of New York, 112 AD2d 562, 564). That having been said, the mere occurrence of an assault does not establish negligence. (Colon v State of New York, 209 AD2d 842, 843). Rather, the State will only be liable for an inmate on inmate assault in the event of one of the following situations: (1) the victim is a known risk and the State failed to provide reasonable protection; (2) the State has notice that the assailant was particularly prone to perpetuating such an assault and failed to take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene and failed to do so. (Sebastiano v State of New York, 112 AD2d 562; Littlejohn v State of New York, 218 AD2d 833, 834; Schittino v State of New York, 262 AD2d 824, 825, lv denied 94 NY2d 752). Here, Claimant was initially unable to identify his attacker, although the attacker was later tentatively identified. In either event, Claimant failed to establish his assailant had any known violent tendencies of which the State was aware. Also, Claimant offered no evidence that he was a known risk himself. Additionally, Claimant offered no evidence from which this Court could conclude the State had notice, let alone ample notice, of his assault but failed to intercede. Unremitting supervision is unnecessary and, as such, absent any evidence of improper supervision, none of which was presented here, an assault upon an inmate, in and of itself, does not establish a breach of any duty by the State owing to Claimant. (Colon v State of New York, 209 AD2d 842, 844).

Based upon the foregoing, Claimant has not sustained his burden of proof and has failed to establish a
prima facie case for negligent supervision.

Accordingly, the State's motion to dismiss made at the conclusion of trial is now GRANTED and Claim No. 94527 is hereby DISMISSED.

All other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.


June 12, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, all quotations are from the Court's trial notes.