New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2005-010-019, Claim No. 95667


Inmate on inmate assault claim was dismissed as claimant failed to meet his burden of proof. The Court credited the testimony of CO regarding security measures in place at the time of the attack.

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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Mary Kavaney, Assistant Attorney General
Third-party defendant's attorney:
Signature date:
March 18, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he sustained on December 1, 1996 while incarcerated at Sing Sing Correctional Facility (Sing Sing). The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that he arrived at Sing Sing sometime in November 1996 and was housed in 5 building pending transit to another correctional facility. Claimant was serving a sentence of three and a half to seven years imposed on State charges while also facing a detainer lodged by the United States Marshal's Service related to a Federal Court conviction for conspiracy to commit murder.
claimant entered Sing Sing, he had an intake interview. He was questioned about any known enemies and responded that he had none. He did not advise facility staff that he had been a member of the Latin Kings gang. Claimant was aware, from prior incarcerations, of the practice of establishing separatee or enemies lists.
On the morning of December 1, 1996,
claimant attended services at the Christian Chapel at Sing Sing. There were 40 or 50 inmates present with one or two correction officers.[1] According to claimant, there were two chapels that were reached by walking through a large auditorium. All three areas were in use on December 1, 1996. Claimant stated that, at the conclusion of service, the inmates from the three locations entered one long corridor en route to their housing units. He estimated that over 60 inmates were in the corridor when suddenly he felt pain, something sharp, and blood across his face. Claimant realized that he had been slashed. He did not see his attacker, but observed an inmate running in the opposite direction. Claimant proceeded another 50 feet to his cell. He did not observe any correction officers in the corridor. It was not until claimant was inside his cell that he saw a correction officer.
Prior to the assault,
claimant had not received any threats and had no altercations with any inmate at Sing Sing. When asked whether he was familiar with life in prison and how to protect himself, claimant replied, "to be honest, in prison, no place is safe."[2] Claimant conceded that he has an extensive criminal history.
Lieutenant Ronald Brevetan an testified that he has been employed by the New York State Department of Correctional Services for almost 20 years and has spent most of that time at Sing Sing. On December 1, 1996, he was a sergeant at Sing Sing responsible for the supervision of other correction officers. Brevetan had no personal knowledge of the attack, and did not read the reports in the file regarding the incident.

Brevetan testified that,
to reach the chapels, inmates leaving 5 building proceeded approximately 150 feet through a hallway known as the south corridor. The corridor was well lit with mirrors on the wall positioned to alleviate blind spots. There was a metal detector at the exit for inmates leaving 5 building. Inmates entering the corridor from other locations were subject to hand scanning and random pat frisks.
Brevetan explained that before religious services were concluded in three chapels surrounding the auditorium, the correction officers posted in the chapels called ahead for gate clearance and inmates were required to exit in groups according to their housing units. The correction officer at the gate controlled the inmates' movement.

Brevetan noted that the records revealed that
claimant had entered Sing Sing five days prior to the incident. Inmates in transit, without any threats against them, where placed in general population within three to five days of their arrival at Sing Sing. Brevetan also confirmed that claimant had no enemies on his separatee list.
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risk of harm (see Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). Foreseeable risk of harm includes the risk of attack by other prisoners (see Littlejohn v State of New York, 218 AD2d 833). That duty, however, does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247). The State's duty is to exercise reasonable care to prevent foreseeable attacks by other inmates (see Padgett v State of New York, 163 AD2d 914). The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State actually knew, but also "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" (Sanchez v State of New York, supra at 254 [emphasis in original]). The mere fact that a correction officer may not have been present when an assault occurred does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see Colon v State of New York, 209 AD2d 842, 844). "[T]he State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. *** The 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, supra at 256).
To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with 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 (Id.). "The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable" (Wilson v State of New York, 303 AD2d 678). The Court finds that upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, there is a lack of evidence sufficient to meet claimant's burden of proof. The Court does not find claimant's testimony worthy of belief and credits the testimony of Lieutenant Brevetan regarding the security measures that were in place at the time of claimant's attack.
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


March 18, 2005
White Plains, New York

Judge of the Court of Claims

[1] At his examination before trial (EBT) in 2003, claimant testified that there were three or four correction officers in the chapel. When questioned at trial about the discrepancy, he erroneously stated that the trial date was closer in time to the assault than the EBT.
[2] All quotations are to the trial notes or audiotapes unless otherwise indicated.