New York State Court of Claims

New York State Court of Claims

CHRISTODOULOU v. THE STATE OF NEW YORK, #2004-019-007, Claim No. 94526


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:
7HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 5, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Nick Christodoulou, a pro se inmate, brings this claim alleging he sustained injury as a result of an assault by another inmate which resulted due to negligent supervision of the prison population by the Department of Correctional Services. The trial of this claim was held on February 17, 2004 at the Elmira Correctional Facility (hereinafter "Facility").

At the trial, claimant testified that on June 17, 1996 at approximately 3:30 p.m., he was attacked by an unknown inmate while in the Field House at said Facility. During the course of that attack, claimant testified that he was assisted by a fellow inmate named Mytias. The altercation, according to claimant, was quelled by correction officers located in the Field House who cuffed claimant and put him against the wall. Claimant testified that while he was against the wall with his hands cuffed behind him, his throat was cut and he was hit about the face and head with a chair, by another unrestrained inmate. Claimant further testified that after the fight he was placed in involuntary protective custody and while in said custody was attacked again by another unknown inmate.

On cross-examination by the Assistant Attorney General, the claimant admitted he did not know his attacker, he had no prior problems with any other inmates at the Facility, nor had he ever relayed to correction officers or the Facility any anticipated problems with other inmates also housed at the Facility. He acknowledged that Inmate Mytias, who allegedly was there to assist him during the course of the fight was charged with a weapons possession violation. Furthermore, the claimant could not identify who the correction officers were at said location or how many were present. After offering his testimony the claimant rested.

At the close of the claimant's case, the State moved to dismiss on the grounds that the claimant had failed to establish a prima facie case of negligent supervision, and that he had failed to sustain his burden of proof by failing to offer any evidence that any attack was reasonably foreseeable or that there was anything that the Facility failed to do to provide reasonable protection to the claimant. The court reserved decision on this motion.

The State called Correction Officer Perfetti and Correction Officer Evans, both of whom were on duty at the Facility Field House at the time of the assault. Both testified that their attention was drawn to the TV area of the Field House by a confrontation that was taking place. Both officers responded to the commotion in less than one minute. Upon arrival, both observed Inmate Mytias, who claimant alleged was assisting him in warding off the attack, attacking the claimant and slashing at him with a box cutter. Inmate Mytias was cornered by the correction officers and the razor in his possession was confiscated. Claimant was also placed under control and both were placed in custody. More importantly both correction officers testified that once the claimant was cuffed and placed against the wall, no further assault took place against the claimant. In fact, the State offered Exhibit A, an involuntary protective custody recommendation which outlines the factual scenario underlying this altercation consistent with the officer's testimony at trial. Both correction officers testified that they had no prior notice of a problem between claimant and Mytias, that they had no prior assault problems with the claimant or Mytias, and no prior notice of this actual incident preparing to boil over.

It is well settled that the State owes a duty of care to safeguard inmates, a duty which includes prevention of attacks from fellow inmates. That having been said, however, this duty does not transform the State into an insurer of inmate safety. (
Sanchez v State of New York, 99 NY2d 247). Rather, in order to establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that decedent was at risk of being assaulted and yet failed to provide reasonable protection; (2) the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act. (Sanchez, 99 NY2d 247). In Sanchez, the Court of Appeals clarified that the test of foreseeability includes not only actual notice, but in addition "[t]he State's constructive notice – what the State reasonably should have known...." (Id. at 254; emphasis in original). The Court of Appeals emphasized, however, that the required actual or constructive notice analysis does not equate to a mandate for "unremitting surveillance in all circumstances" and that "[t]he mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State." (Id. at 256).

Based upon the foregoing, the court is satisfied that the claimant has failed to sustain his burden of proof of establishing that the State knew or should have known that the claimant was at risk of being assaulted and yet failed to provide reasonable protection. Furthermore, on this record there is nothing which indicates that the State knew or should have known that the assailant was prone to perpetrating an assault and that the State did not take proper precautionary measures to protect claimant from same. Furthermore, this record does not establish that the State had ample notice and opportunity to intervene but did not act. To the contrary, there is nothing in this record which indicates that the claimant could identify his assailant or that the State had any knowledge that either the claimant was prone to assault or that his attacker "was prone to perpetrating" the same. Moreover, it is clear to the court that the State responded promptly as soon as the altercation commenced and quelled the disturbance in a reasonable manner and fashion.

Additionally, the court finds claimant's testimony lacking in credibility, regarding his role in this incident as well as the role of Inmate Mytias, particularly in light of the testimony offered by the correction officers at the scene.

Based upon the foregoing, the State's motion to dismiss made at the close of the claimant's case on which the court previously reserved is now granted.

Consequently, Claim No. 94526 should be and hereby is DISMISSED.


May 5, 2004
Binghamton, New York

Judge of the Court of Claims