New York State Court of Claims

New York State Court of Claims

RUSCH v. THE STATE OF NEW YORK, #2004-030-002, Claim No. 104589


Synopsis


Case Information

UID:
2004-030-002
Claimant(s):
M. RUSCH The caption has been amended to reflect the only proper defendant.
Claimant short name:
RUSCH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104589
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
M. RUSCH, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: BARRY KAUFFMAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
January 12, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Mark Rusch, the Claimant herein, alleges in Claim Number 104589 that he suffered personal injury due to the intentional acts of a fellow inmate while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS). Trial of the matter was held at Green Haven Correctional Facility on November 21, 2003.

Claimant alleges that he was "sprayed with asbestos"[1]
by a fellow inmate at Fishkill Correctional Facility bent on preventing Claimant from subjecting the inmate to a civil lawsuit and/or criminal prosecution. Claimant stated that the inmate would pass by Claimant's cell after having worked in an asbestos removal project at the facility, spraying asbestos on Claimant as Claimant slept. As a result of the inmate's having "thrown the asbestos," Claimant alleges that "five years later" he contracted "terminal malignant cancer of the lymph nodes." Claimant asserts that the inmate was "attempting to assassinate" him and was a threat to Claimant's family since it was the inmate - rather than Claimant - who had committed the crimes for which Claimant was incarcerated. Claimant testified that physicians told him he was "definitely dying" causing him "emotional distress."
No other witnesses testified, and no other evidence was submitted.

To establish a
prima facie case of negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of plaintiff's injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence. Certainly, the State is not the insurer of the safety or well-being of inmates in its custody. Even assuming that the events as described by Claimant occurred - and the Court does not find the facts alleged by Claimant to be credible - no facts have been alleged connecting the inmate's intentional conduct and the Defendant's agents, nor has any duty been established beyond the general duty of care owed to the Claimant. Moreover, even if the Defendant's agents could be found chargeable with a duty to protect Claimant from this inmate's somewhat bizarre intentional conduct, Claimant has drawn no nexus between the conduct alleged and the harm he claims he has suffered. Contracting cancer five years after the alleged conduct does not necessarily mean that the cancer was caused by the conduct. In any event, no medical evidence was submitted to substantiate Claimant's medical condition, nor was any expert testimony offered linking the "throwing" of asbestos to Claimant's alleged cancer.
At the close of Claimant's case, Defendant moved to dismiss the claim for failure to state a cause of action against the State of New York. Civil Practice Law and Rules §3211(a)(7). There has been no indication that the Defendant's agents have violated any statute or applicable regulation, or otherwise violated any duty owed to this Claimant.

Accordingly, Claim Number 104589 is hereby dismissed in its entirety for failure to state a cause of action. Civil Practice Law and Rules § 3211(a)(7)
. Additionally, the Claim is dismissed for failure to establish a prima facie case of negligence.
Let Judgment be entered accordingly.

January 12, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims





[1] All quotations are to trial notes or audiotapes unless otherwise indicated.