New York State Court of Claims

New York State Court of Claims

STEELE v. THE STATE OF NEW YORK, #2003-030-535, Claim No. 102897, Motion No. M-66165


Pro se inmate's motion for summary judgment denied. Triable issue of fact as to foreseeability of assault on Claimant

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:
April 29, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read on Claimant's motion for Summary


1,2,3 Notice of Motion, Statement of Fact (sic) with Arguments by William Steele, Claimant, Request for Admission, accompanying exhibits

4 Affidavit of Dennis Urciuoli, Correction Officer, sworn to February 24, 2003

5,6 Filed Papers: Claim, Answer

After carefully reviewing the papers submitted and the applicable law the motion is disposed of as follows:

William Steele, the Claimant herein, alleges in Claim Number 102897, that Defendant's agents negligently failed to protect him from an assault by a fellow inmate, by failing to follow their own institutional policies, while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven). He alleges that on September 3, 1998 at approximately 1:00 p.m., his cell was opened by Correction Officers Kennedy and Urciuoli. These officers "had been assigned to the area for 2 ½...years; And upon information and belief know every inmate that locked into the area of five company." [Claim No. 102897, ¶6]. When Claimant emerged from his cell an unknown inmate - "who did not lock on claimant('s) locking company" - stabbed him. [Id]. After falling to the ground, another inmate called for help, and carried claimant through the security end gate to the facility clinic. Thereafter, Claimant was taken to St. Francis Hospital, as well as Westchester County Medical Center, for treatment of his injuries.

In the Statement of Fact attached to this motion Claimant asserts that there is a New York State Department of Correctional Services (hereafter DOCS) policy prohibiting "an inmate to enter a locking company, where they do not lock." [Statement of Fact, ¶ 1]. He claims that his assailant was negligently allowed to walk by the assigned supervising officers, through an open security gate, onto Claimant's company when the assailant did not "lock" on Claimant's company.

In the Affidavit of Correction Officer Urciuoli he indicates that on September 3, 1998 he was working on the 7:00 a.m. to 3:00 p.m. shift as the vocational garage officer. One of his afternoon duties "was to bring the inmates back and forth to the mess hall from H Block, 2 and 5 company, and then let them out to go to their programs." [Affidavit of Dennis Urciuoli,¶¶3 and 4]. He states that as the inmates were being released to go back to their programs, he saw an inmate named Barnes pick up the Claimant, and run to the officers' cage, where Officer Urciuoli was stationed at the time. When Officer Urciuoli asked Barnes what he was doing, Barnes said that Claimant was having difficulty breathing. Believing that Claimant was having a heart attack, the officer let them pass to go to the first floor to the infirmary.

He also states that he is unaware of any history of assaultive behavior on the part of Claimant's assailant, and notes that there is no mention of such history in the Claimant's moving papers. As to any lack of protection or supervision, Officer Urciuoli indicates that supervision was consistent with standard operating procedures. Finally, he asserts that security procedures were adequate and were followed.

Claimant's Request for Admission as well as the Defendant's Response to it are included in the moving papers and in the responding papers, respectively. In the response to Claimant's Request for Admission, Officer Urciuoli indicates he has no knowledge of an assault on Claimant by another inmate on September 3, 1998; denies that security procedures require that inmates are not allowed to enter a company where they do not lock; admits that security staff must secure their locking area, monitor inmate movement during facility functions throughout the day; indicates that he has no knowledge of any reports concerning the assault or medical treatment; and admits that institutional policy and procedure does not permit other inmates to enter an area where they do not belong.
Civil Practice Law and Rules §3212(b) provides in pertinent part:
....A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party....the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact.

Once a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material, issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues that require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

Additionally, Civil Practice Law and Rules §105(u) indicates that "...[a] ‘verified pleading' may be utilized as an affidavit whenever the latter is required." The use of the Claimant's own sworn statements contained in his verified pleading may suffice here, accompanied as they are by documentary evidence including DOCS records, even though the motion papers themselves do not appear verified. Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986).[1] As an initial matter, the Court will treat the motion as adequately supported.

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 that the State knew or should have known that there was a risk of harm to the Claimant that was reasonably foreseeable and inadequately addressed. Sanchez v State of New York, 99 NY2d 247, 253 (2002), see, also, Flaherty v State of New York, 296 NY 342, 347 (1947). The Court must look to see if the actions taken by the State were reasonable under the circumstances. The mere fact that a correction officer is not present at the precise time and place of an assault, for example, does not give rise to an inference of negligence absent a showing that officials had notice - actual or constructive - 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); Huertas v State of New York, 84 AD2d 650 (3d Dept 1981).[2] "...[U]nremitting supervision..." is not required. Colon v State of New York, supra, at 844.

In Sanchez v State of New York, supra, the Court of Appeals reversed the Appellate Division - which had affirmed a Court of Claims dismissal on summary judgment of the Claimant's negligent supervision claim - finding that there was a triable issue of fact as to the foreseeability of an attack upon Claimant that was as much a surprise to him as it allegedly was to the State. Claimant had been assaulted by unidentified inmates in the school area of Elmira Correctional Facility. One officer was stationed at a desk at one end of a 60 foot long corridor, and was responsible for supervising approximately 100 inmates as they moved through the corridor. The officer was known to leave his desk and stand at a storage room area at the opposite end of the corridor where portions of the area he was responsible for - including the front of the classroom where Claimant was attacked - were not visible. Saying that a "...strict requirement of specific knowledge for foreseeability is one that has evolved recently in the Appellate Division....(citations omitted)", the Court of Appeals explained that while actual knowledge with respect to the foreseeability of a given assault "...offers a bright-line test, that line redefines the traditional standard of reasonableness that has long been the touchstone of the law of negligence, and it cuts off consideration of other factors that have previously been found relevant to foreseeability. What the State actually knew plainly falls within the ambit of foreseeability. But the Appellate Division actual notice test precludes additional consideration of the State's constructive notice - what the State reasonably should have known - for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks....(citations omitted)."[3]

Clearly, in the present case, all that has been presented are triable issues of fact as to the foreseeability of the alleged assault on claimant, and the adequacy of any measures taken to protect him and supervise his fellow inmates, not susceptible to resolution on a motion for summary judgment. Accordingly, Claimant's motion is in all respects denied.

April 29, 2003
White Plains, New York

Judge of the Court of Claims

[1]"A fair reading of the attorney's affirmation, the hospital records and the defendant's deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant's supporting proof was placed before the court by way of an attorney's affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion...(citations omitted)."
[2]Another example might be 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.
[3] It is noted that the majority opinion - addressing the concerns of the dissent - declares that "...we underscore that the State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate." The majority confirms that in the case before it there was simply a triable issue, given "...uncontested evidence of State rules and regulations relevant to foreseeability; uncontested evidence of an elevated risk of inmate-on-inmate attack during congregate ‘go-back' time; and uncontested evidence of both the regularity of the correction officer's inattentiveness at precisely that time and the officer's inability to see claimant at the location where he was required to stand."