New York State Court of Claims

New York State Court of Claims

COMBES v. THE STATE OF NEW YORK, #2006-028-570, Claim No. 109385, Motion No. M-71295


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:
BY: Carol A. Cocchiola, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The Court considered the following papers on the Claimant's motion for summary judgment pursuant to CPLR § 3212:

1. Notice of Motion for Summary Judgment and Affidavit in Support of George Combes, pro se, filed February 1, 2006;

2. Affirmation in Opposition of Carol A. Cocchiola, AAG (Cocchiola Affirmation) filed May 22, 2006;

3. Claimant's “Reply to Defendant's Motion” (Claimant's Reply) filed June 2, 2006.[1]

Filed Papers: Verified Claim filed May 21, 2004; Verified Answer filed May 28, 2004.

On March 2, 2004, Claimant, an inmate, was being held in voluntary protective custody

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 3).[2]

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 denied.

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 damages.

July 21, 2006
Albany, New York

Judge of the Court of Claims

[1].Claimant's reply papers were filed approximately a week after the return date. However, the Court finds no prejudice to the Defendant in accepting Claimant's late reply submission (CPLR § 2214 [c]; 22 NYCRR § 206.9 [b]).
[2].Selected unreported decisions from the Court of Claims are available via the Internet at