New York State Court of Claims

New York State Court of Claims

BELLO v. THE STATE OF NEW YORK, #2005-030-011, Claim No. 107980


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:
May 16, 2005
White Plains

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Appellate results:

See also (multicaptioned case)

Anthony Bello, the Claimant herein, alleges in Claim Number 107980 that Defendant's agents failed to protect him from an assault by a fellow inmate when he was incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held on April 29, 2005.

As an initial matter, the Defendant moved to dismiss the Claim based on its fifth affirmative defense, a lack of jurisdiction because of the failure to properly serve the claim as required by Court of Claims Act §11. Specifically, Defendant indicated that although Claimant used priority mail to serve the claim, it was not served via certified mail, return receipt requested, nor was it served personally upon an Assistant Attorney General.

The filing and service requirements contained in Court of Claims Act §§10 and 11
are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989). Service upon the Attorney General by ordinary mail is insufficient to acquire jurisdiction over the State, as is mail service by any means other than certified mail, return receipt requested, unless the State fails to properly plead jurisdictional defenses or raise them by motion. Court of Claims Act §11(c); Edens v State of New York, 259 AD2d 729 (2d Dept 1999); Philippe v State of New York, 248 AD2d 827 (3d Dept 1998). Additionally, the Claimant has the burden of establishing proper service. Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989).
Here, the State's Verified Answer pleaded this defense with particularity, preserving the issue for review, and Claimant has not denied the means of service used. Accordingly, for these reasons alone the Claim is dismissed.

More substantively, Claimant has not established the elements of his claim.

Claimant testified that in the afternoon of April 15, 2003 "someone came from behind and cut . . . [him]"[1]
while he was taking a shower at the bathhouse at Sing Sing. When he realized he had been injured, he chased after his assailant, but could not catch him. Claimant "went to the officer", and was taken to the facility hospital. He said he was cut on the left side of his head from his "eyebrow to [his] temple," and received thirteen stitches. Thereafter, he was placed in involuntary protective custody. He never identified his assailant.
In the "unusual incident packet", the fact of his injury is confirmed, but it appears that Claimant would not identify his assailant and refused protective custody. [Exhibits 1 and A]. Claimant confirmed on cross-examination that he did not know his assailant, and that Claimant initially told correction officers that he fell rather than that he was assaulted.

No other witnesses testified on Claimant's direct case.

Correction Officer Orrico, who had been assigned to the bathhouse at Sing Sing on April 15, 2003 testified as well. He said that his responsibilities at the bathhouse included letting the inmates in, making rounds for security purposes, making sure the inmates showered, regulating temperature, and moving inmates back out in a timely fashion. He described the bathhouse as two rows, each row with a shower on each side of it, each shower separated by a small partition so that one inmate can shower in each stall. To see every inmate, "you need to walk down the rows." There is no central location from which to view all inmates at once.

On April 15, 2003, Officer Orrico indicated he was making his rounds, and had returned back to the front gate, when Claimant was standing behind him "with a cut across the top of his left eye." When Officer Orrico asked Claimant what happened, Claimant responded that he had fallen. Officer Orrico gave him paper towels, notified the area supervisor, and Claimant was taken to the facility hospital.

In the meantime, the bathhouse was shut down, and the Sergeant started his investigation. All the inmates present were identified and searched for weapons. He could not say precisely what the investigating officer asked them, but he knew they had all been questioned.

Officer Orrico recalled there were "probably 10-15 seconds" between the time he first walked to make rounds around the bathhouse and the time he reached the front gate and was approached by the injured Claimant. He stated there were approximately 40 inmates showering that afternoon. When he passed the back row - where Claimant's stall was - there was nothing notable, and by the time he had proceeded up the side row to look at all the stalls back to the front gate, Claimant was behind him bleeding. Officer Orrico did not see Claimant chasing anyone, nor did he see anyone running anywhere. He did not hear screaming, or see an assailant. He said there was blood in the specific area, and a blood trail to the front gate. Officer Orrico stated that had Claimant been running around as claimed, there would have been blood all over.

No weapon was ever found in the bathhouse after the investigation, despite searching the whole bathhouse and searching every inmate.

On cross-examination, Officer Orrico denied having been in the barbershop talking with a female officer with a loud radio on when Claimant was attacked.

In the unusual incident report, the investigating Sergeant reports that when he interviewed Claimant at the facility hospital, Claimant maintained that he had fallen in the shower. [Exhibits 1 and A]. Sergeant McNamara indicates that all 40 inmates were searched and no contraband or evidence of injury was found. [
ibid]. No contraband or weapon was found in the bathhouse itself, although a razorblade was found on the ground below an open window, but did not appear to be the weapon used in the assault on Claimant. [ibid]. It appears that no assailant was ever identified. [ibid].
In order to establish liability on the State's part in a case involving an inmate upon inmate assault, a Claimant must allege and prove
that the State knew or should have known that there was a risk of harm to the inmate Claimant that was reasonably foreseeable and inadequately addressed. Sanchez v State of New York, 99 NY2d 247, 253 (2002)[2]; 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 duty of reasonable care does not, however, render the State the insurer of inmate safety. Sanchez v State of New York, supra. 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).[3] ". . . [U]nremitting supervision . . ." is not required. Colon v State of New York, supra, at 844.
Upon consideration of all the evidence, and based upon the relative credibility and consistency of the witness's testimony, Claimant has not established that the State had any reason to know that Claimant was at risk of being assaulted and failed to provide him with reasonable protection. In this case, there has been no showing that the Claimant was known to be at risk either generally, or that his attacker was known for violent propensities, or any prior notice of antagonism between Claimant and his assailant, or any other evidence of motive. Indeed, Claimant did not identify his attacker.

There was no record made to establish that the use of one correction officer to supervise the movement of inmates in the bathhouse in the manner such supervision was executed by Officer Orrico is against penological standards of care. Officer Orrico described the events that transpired as occurring in a matter of seconds. It is difficult to contemplate how this unfortunate event would have been avoided. More generally, the inherent risk of violent activity in a correctional facility housing dangerous individuals does not mandate imposition of liability for inmate-on-inmate assaults that are not reasonably foreseeable. Claimant has not sustained his burden of establishing that the State had actual or constructive notice of the harm that befell him by a preponderance of the credible evidence.

Accordingly, Claim Number 107980 is hereby dismissed in its entirety for both a lack of jurisdiction, and for a failure of proof.

Let Judgment be entered accordingly.

May 16, 2005
White Plains, New York

Judge of the Court of Claims

[1] Al1 quotations are to trial notes or audiotapes unless otherwise indicated.

[2] 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.

[3] Another example might be whether there was information which would trigger a 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.