Claim, filed June 22, 2001.
Verified Answer, filed July 31, 2001.
Claimant's Demand for Bill of Particulars, filed September 7, 2001.
Defendant's Verified Bill of Particulars, filed October 29, 2001.
Notice of Motion No. M-65683, dated August 19, 2002, and filed August 22,
Affidavit of Rasool Salaam, in support of motion, sworn to August 6, 2002, with
Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated November
12, 2002, and filed November 14, 2002, with attached exhibits.
Affidavit of Gregory T. Manos, in opposition to motion, sworn to November 8,
Affidavit of Anthony J. Hicks, in opposition to motion, sworn to November 11,
"Affidavit in Support of Motion for Summary Judgment" of Rasool Salaam, sworn
to November 19, 2002, and filed November 25, 2002.
There are four allegations forming the basis of the underlying Claim. First,
on April 1, 2001, Claimant alleges another inmate threw feces on him. Next, on
April 2, 2001, Claimant alleges that an inmate porter threw feces on him. Both
of these alleged incidents occurred while Claimant was housed at Southport
Correctional Facility (hereinafter "Southport") and both of these other inmates
have since been identified. Third, the Claim alleges that Claimant did not
receive his three meals per day between March 31, 2001 through April 2, 2001.
Finally, Claimant asserts that prison officials refused to give him clean sheets
after the aforementioned incidents.
The Claimant recites that a Notice of Intention was served on the Attorney
General's office by way of certified mail, return receipt requested, on April
20, 2001. The Claim itself was filed with the Clerk of the Court on June 22,
2001 and served on the Attorney General's office by way of certified mail,
return receipt requested, on July 5, 2001. The State filed a Verified Answer on
July 31, 2001 containing two affirmative defenses neither of which are
jurisdictional in nature. During the course of discovery, Claimant served the
State with a Demand for a Bill of Particulars seeking particularization on the
two asserted affirmative defenses. In response, the State filed a Verified Bill
of Particulars on October 29, 2001 detailing the manner in which these incidents
were caused in whole or in part by the culpable conduct of a third person and/or
Claimant himself. It is the State's Verified Bill of Particulars which the
Claimant uses here as his guide in attempting to refute each and every statement
contained therein. Consequently, in this Court's view, Claimant's papers may be
read as both a motion for summary judgment, as well as a motion to strike the
State's affirmative defenses since Claimant's 12 page handwritten supporting
affidavit offers a narrative on why each of the State's Affirmative Defenses are
With respect to a motion to strike affirmative defenses, "[a] party may move to
strike any scandalous or prejudicial matter unnecessarily inserted in a
pleading." (CPLR 3024 [b]). The two affirmative defenses at issue here are
standard including allegations of culpable conduct of Claimant and/or a third
party. Affirmative defenses are not dispositive of a claim and are merely
assertions of a party, absent prejudice, that will not be stricken. (CPLR 3024;
5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14). Neither of these
affirmative defenses are prejudicial or scandalous in any respect whatsoever.
The State properly included both of these affirmative defenses in its Verified
With respect to Claimant's motion for summary judgment, it is well-settled that
the moving party must present evidentiary facts that establish the party's right
to judgment as a matter of law, while the opposing party must present
evidentiary proof in admissible form that demonstrates the existence of a
factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065,
Claimant's primary allegations amount to a negligent supervision claim based
upon the alleged inmate-on-inmate incidents detailed above. It is well-settled
that the State is not an insurer of the safety of inmates, although it must
provide reasonable protection against foreseeable risks of attack by other
inmates. (Pierrelouis v State of New York, 255 AD2d 824). Of course,
"[t]he mere occurrence of an inmate assault, without credible evidence that the
assault was reasonably foreseeable, cannot establish the negligence of the
State". (Sanchez v State of New York, __ NY2d __, 2002 NY Slip Op 08712,
*10 [November 21, 2002]).
Here, Claimant has submitted, among other things, the pertinent Inmate
Misbehavior Report, Southport memoranda, and an Unusual Incident Report. In
response, the State has submitted affidavits from Sgt. Manos and Officer Hicks
who investigated the alleged incidents. Both officers dispute Claimant's
allegations. Based upon this record and the differing accounts of events, this
Court finds that Claimant has failed to present evidentiary facts that establish
his right to judgment as a matter of law. Rather, the Court finds that
questions of fact exist warranting the denial of Claimant's motion for summary
That having been said, the State properly points out to the extent that
Claimant relies on violations of the Federal Constitution, those portions of his
claim must be dismissed. (Brown v State of New York, 89 NY2d 172, 184).
Accordingly, in light of the foregoing, it is ORDERED that Claimant's motion
for summary judgment, Motion No. M-65683, is DENIED, and it is further
ORDERED that portion of Claimant's Claim relying on violations of the Federal
Constitution are hereby DISMISSED.