New York State Court of Claims

New York State Court of Claims

SALAAM v. THE STATE OF NEW YORK, #2002-019-593, Claim No. 104462, Motion No. M-65683


Claimant's motion for summary judgment regarding inmate assault case is denied.

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: Carol A. Cocchiola, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
December 9, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for summary judgment pursuant to CPLR 3212. The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed June 22, 2001.
  2. Verified Answer, filed July 31, 2001.
  3. Claimant's Demand for Bill of Particulars, filed September 7, 2001.
  4. Defendant's Verified Bill of Particulars, filed October 29, 2001.
  5. Notice of Motion No. M-65683, dated August 19, 2002, and filed August 22, 2002.
  6. Affidavit of Rasool Salaam, in support of motion, sworn to August 6, 2002, with attachments.
  7. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated November 12, 2002, and filed November 14, 2002, with attached exhibits.
  8. Affidavit of Gregory T. Manos, in opposition to motion, sworn to November 8, 2002.
  9. Affidavit of Anthony J. Hicks, in opposition to motion, sworn to November 11, 2002.
  10. "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 faulty.[1]

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 Answer.

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, 1067-1068).

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 judgment.

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.

December 9, 2002
Binghamton, New York

Judge of the Court of Claims

[1]The Court notes that it has done its best to decipher Claimant's papers which were single-spaced and handwritten and, generously described, difficult to read. Claimant is apprised of CPLR 2101 (a) which requires, among other things, that the "writing shall be legible" in all papers served or filed. (See also 22 NYCRR 206.5).