New York State Court of Claims

New York State Court of Claims

SULTAN v. THE STATE OF NEW YORK , #2002-030-025, Claim No. 101243


Pro se inmate's Claim that Defendant's agents negligently failed to protect him from an assault

by fellow inmates 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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
March 21, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Roger Sultan, the Claimant herein, alleges Defendant's agents negligently failed to protect him from an assault by fellow inmates because of inadequate supervision of assigned officers while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held at Sing Sing on January 18, 2002.

Claimant testified that on "August 14, 1998 at approximately 10:45 AM...[he] was leaving the B-Block yard, and returning to...[his] gallery. As...[he] was coming up the stairs,...[he] felt someone behind him trying to push him down, and when...[he] turned around in a southward direction...[he] saw a guy with a knife in his hand, trying to stab...[him]....[He] couldn't see his face at the time."[1]
He asserted that there were no officers present on the gallery. "All the officers were in front of the B-Block yard, congregating by Sergeant Johnson and Officer Camacho." He alleged "there is supposed to be one gallery officer" on each of three galleries - none were present.
In his Claim, more specific information concerning the alleged assault is stated. It is alleged that Officer Camacho and Sergeant Johnson - the latter at a post on V-Gallery - "saw....[Claimant] running down (W-Gallery in a Southward Direction and another inmate....running at...[him] with a (Metal-Shank-8 ½ - inches) in his right hand inflicting bodily harm to...[Claimant] by stabbing...[him] in...[his] upper right chest area, and outer right forearm (see, attached injury report Exhibit's [sic]).[2]
The cause of this injury...was unknown at the time of this incident the area was not secure with any officers at that time and this area should have been secure at all times's [sic] when there is movement...." [Claim No. 101243, filed October 14, 1999, Page 3 "Statement of Facts."].
No other witnesses testified.

At the close of Claimant's case, certain substantive and procedural arguments were made. First, Claimant alleged he had not received a response to his bill of particulars request - served in "September of last year"[3]
- until the day of trial, and hadn't had time to look at the materials supplied. The Court gave Claimant an opportunity to review the materials for at least one hour. After such review, Claimant was still asking for more time, although that request was not specifically articulated. Second, Claimant indicated he had never been served with the Defendant State's Verified Answer, and asked that he be awarded "summary judgment" based upon this failure.
In opposition to the Claimant's first application, the Assistant Attorney General pointed out that although Claimant called the request referred to one for a "bill of particulars," in actuality, it was a demand for discovery. The State argued it had complied with the request, to the best of its ability, and furnished what appeared to be appropriate documents. Defendant further argued that given the amount of time the matter had been pending, and the State's compliance with the request, whatever it was called, Claimant should have moved to compel disclosure or otherwise have acted earlier with respect to his request if he found a response lacking or insufficient. This Court agrees.

This Claim has been pending since 1999. Any discovery issues should have been raised long ago and are simply untimely.
See, generally, §§3042 and 3124, 3126 Civil Practice Law and Rules.
With regard to Claimant's application for summary judgment based upon the State's alleged failure to serve an Answer, the State indicated it had served a Verified Answer on Claimant on November 22, 1999, and furnished an affidavit of service attesting to same. A copy of the Verified Answer filed in the Office of the Chief Clerk of the Court of Claims furnished to this Court by the Clerk does not contain the affidavit of service referred to, but indicates it was filed on December 2, 1999 with the Clerk. Additionally, the State argued, it is still Claimant's burden to prove his case. Given that Claimant had not satisfied that burden, summary judgment should not be granted.

This Court agrees. Claimant is required to establish each and every element of his claim to a preponderance of the credible evidence.

While the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates, [
Blake v State of New York, 259 AD2d 878 (3d Dept. 1999); Sebastiano v State of New York, 112 AD2d 562 (3d Dept. 1985)], the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence (Sebastiano v State of New York, supra). In order to establish liability on the State's part, an inmate claimant must allege and prove one of the following grounds: (1) the victim was a known risk and the State failed to provide reasonable protection (See, Sebastiano v State of New York, supra); (2) the State had notice that the assailant was dangerous and refused to take the proper precautions [See, Littlejohn v State of New York, 218 AD2d 833 (3d Dept. 1995); Wilson v State of New York, 36 AD2d 559 (3d Dept. 1971)]; or (3) the State had notice and the opportunity to intervene to protect the inmate victim and failed to act. Smith v State of New York, 284 AD2d 741, 728 NYS2d 530 (3d Dept. 2001). The mere fact that a correction officer is not present at the precise time and place of an assault does not give rise to an inference of negligence absent a showing that officials had notice of a foreseeable dangerous situation. Colon v State of New York, 209 AD2d 842 (3d Dept. 1994); Padgett v State of New York, 163 AD2d 914 (4th Dept. 1990), lv denied, 76 NY2d 711 (1990).
Additionally, the court must consider whether there was information which would trigger any heightened awareness of a risk to this inmate - any "suspicious" behavior such as an individual leaving an assigned work post, or stuffing magazines in his shirt to avoid injury - to alert correction personnel of a specific danger brewing.
See, e.g., Huertas v State of New York, 84 AD2d 650 (3d Dept. 1981).
Even an inmate's request for protective custody may not necessarily trigger a specific duty to protect, if the inmate does "...not alert the interviewing...[correction officers] of his past problems, a specific hazard or a particular urgency to his situation."
Roudette v State of New York, 224 AD2d 808, 809 (3d Dept. 1996).
The fact that officers may not have been present at the precise time and place of the assault, does not give rise to liability.
Colon v State of New York, supra; Padgett v State of New York, supra. "...[U]nremitting supervision..." is not required. Colon v State of New York, supra, at 844. When the assault occurred here, it was dealt with in a comprehensive and appropriate fashion, and immediate medical care was given.
Based upon this record, Claimant has failed to establish that the State failed to provide him with reasonable protection against a foreseeable risk of harm. In both versions of the facts: those contained in his claim, and those that he testified to, there was no notice to the state of a dangerous situation developing between this Claimant and others; no showing that the State had been made aware of any enemies and correction officers were in the area - if not directly at the gallery posts - and promptly came to Claimant's aid when he was attacked. Accordingly, Claim Number 101243 is dismissed in its entirety.

Let Judgment be entered accordingly.

March 21, 2002
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.
[2] No such exhibits are annexed.
[3] There

does not appear to have been compliance by either party with the filing requirements of 22 NYCRR § 206.5(c), so the Court has no indication of timeliness one way or the other.