Filed Papers: Verified Claim filed May 21, 2004; Verified Answer filed May 28,
On March 2, 2004, Claimant, an inmate, was being held in voluntary protective
in Elmira Correctional Facility (hereinafter "Elmira"). This claim arose when
Claimant was physically assaulted by another inmate, Victor Silvester, who was
being held in involuntary protective custody. The Claim alleges a theory of
liability based upon negligent supervision. More specifically, Claimant alleges
that voluntary protective custody inmates and involuntary protective custody
inmates are supposed to be kept separated in accordance with prison regulations.
He also alleges that inmate Silvester had a history of violent behavior.
The parties have engaged in extensive discovery since the commencement of this
action including the Court's in camera
review of various documents.
After said review, the Court ordered the disclosure of, among other things,
Silvester's Inmate Disciplinary History and Inmate Misbehavior Reports. Based
upon said documents, the Court noted that "[i]nmate Silvester has been a
lightening rod for trouble and has amassed an intertwined history of violent and
non-violent disciplinary problems. Based on these documents, inmate Silvester's
behavior can safely be described at this stage as an overall course of conduct
of non-conformity and disrespect for authority and institutional rules"
(Combes v State of New York
, Ct Cl, August 3, 2005, Lebous, J., Claim No.
109385, Motion No. M-69902 [2005-019-557], p
Now, upon the completion of discovery regarding liability issues, Claimant
seeks an order granting him summary judgment pursuant to CPLR § 3212. In
support of his motion, Claimant submits his own affidavit outlining the sequence
of events leading up to this assault and incorporating the exhibits attached to
this Claim, as well as the various discovery documents referenced above. The
State essentially concedes liability but opposes the motion with respect to
damages. More specifically, the State has candidly admitted that "[t]here are
no triable issues of fact as to the State's liability for the incident that
occurred on March 2, 2004 at the Elmira Correctional Facility involving claimant
and inmate Victor Silvester" (Cocchiola Affirmation,
¶ 3). That having been said, however, the State argues that Claimant has
failed to submit adequate proof, in evidentiary form, from which the Court could
determine evidence of Claimant's injuries, if any, and appropriate damages
(Cocchiola Affirmation, ¶ 4). The Court agrees. Consequently,
Claimant's motion for summary judgment will be granted with respect to
liability, but denied as to damages.
Next, the State notes that Claimant has previously suggested a settlement, the
terms of which would include the State providing him a "strong recommendation
for parole" (Cocchiola Affirmation, ¶ 6). Needless to say, issues
involving parole are not a proper subject for settlement of an unrelated civil
action. If Claimant desires to pursue settlement negotiations with the State he
should make a formal written monetary demand to the assistant attorney general
handling this matter. Towards that end, the State indicates that additional
discovery on the issue of damages is necessary in order to evaluate the claim
for settlement purposes (Cocchiola Affirmation, ¶ 6). As such, the
parties are directed to complete damage related discovery and advise the Court,
in writing, when the matter is ready for a trial on damages.
Finally, in his reply papers, Claimant requests that his damages trial be held
at Southport Correctional Facility rather than Elmira Correctional Facility due
to safety concerns. More particularly, Claimant cites the "negative attitude"
and "dissatisfaction" expressed by Elmira Correctional Facility officials over
his various grievances (Claimant's Reply, ¶ 4). Applications for change
of venue are governed by CPLR § 510 and require that a party demonstrate
one of the following: that the county designated is not a proper county; that an
impartial trial cannot be had in the proper county; or that the convenience of
material witnesses and the ends of justice will be promoted by the change.
Claimant has not demonstrated that any of these requirements have been
satisfied. Claimant's request for a change of venue for his damages trial is
Accordingly, in light of the foregoing, Claimant's motion for summary judgment,
is GRANTED IN PART with respect to liability and DENIED IN PART with respect to