Claimant, an inmate appearing pro se, moves for summary judgment
pursuant to CPLR 3212, and also moves to strike defendant State of New York's
(hereinafter “defendant”) answer. Defendant opposes the
Claimant alleges that he was attacked from behind by an unknown inmate
assailant on May 2, 2003. On May 3, 2003, Sergeant J. Smith recommended
involuntary protective custody due to claimant's attack. An involuntary
protective custody hearing was held on May 14, 2003, and claimant was denied
involuntary protective custody status and was released back into the general
population. The Involuntary Protective Custody Hearing Determination form
(hereinafter the “Hearing Determination Form”) filled out by Hearing
Officer A. Bartlett indicates in part:
I feel this inmate will be safe doing his regular 'programs.'
DISPOSITION: Do Not Place in Protective Custody.
It should be noted that claimant signed the Hearing Determination Form,
acknowledging his statement that he did not want to be placed in protective
On May 16, 2003, claimant was again attacked by an unknown inmate and received
a laceration to the face requiring thirty-four (34) stitches. Claimant alleges
that defendant's negligent denial of involuntary protective custody status for
claimant, and defendant's negligent security and supervision after claimant had
already been attacked once, resulted in his physical disfigurement and
“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
, 99 NY2d 247, 256). Thus, in
order to establish liability, claimant must prove that the State knew or should
have known that there was a risk of harm to him that was reasonably foreseeable
and inadequately handled (id.
; see also Wilson v State of New York,
303 AD2d 678, 679, lv denied
100 NY2d 507). In this case, claimant
must show that defendant knew or should have known that he was at risk for being
assaulted, yet failed to provide him with reasonable protection (see Sanchez,
; Evans v State of New York,
Ct Cl, Ruderman, J., Jan. 31, 2006,
Claim No. 100170, [UID # 2005-010-069]).
In determining this motion for summary judgment, the Court must focus on issue
finding, rather than on determining the issues (see Sillman v
Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). The movant must set
forth evidentiary facts in admissible form which establish a prima facie showing
of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med.
Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557,
562). Once the movant makes this showing, the burden shifts to the opposing
party to produce admissible evidence sufficient to create material issues of
fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d
320, 324). Absent such a prima facie showing, the motion must be denied,
regardless of the sufficiency of the opposing papers (Winegrad, supra).
Claimant contends that he has established that defendant's supervision and
denial of involuntary protective custody were negligent as a matter of law based
on the fact that he was attacked twice, that there was no security staff present
during either attack, and that defendant denied him involuntary protective
custody after the first attack. In support of his motion, claimant offers the
Hearing Determination Form and the Unusual Incident Report prepared after the
second attack. However, even though claimant was injured in a second attack,
the first attack did not involve a weapon, and claimant contended that neither
assailant was previously known to him. Claimant has therefore not met his
burden of establishing his entitlement to judgment as a matter of law.
Defendant also points out that, even if claimant had met the required burden,
claimant's first assailant was unknown to him, and claimant himself
affirmatively indicated he did not want to be placed in protective custody. In
this situation where claimant apparently could not foresee the risk of future
harm to his own person, there is certainly a question of fact as to whether
defendant could reasonably foresee such injury. The existence of this question
of fact mandates that claimant's motion for summary judgment be denied.
With regard to the portion of claimant's motion seeking to strike defendant's
answer, claimant has not raised any issues that might constitute ground for
striking an answer.
He simply avers that
“there is no defense to the cause of action set forth in the claim
To the extent that
claimant’s motion may be to strike the affirmative defenses, it is without
merit. “A party may move for judgment dismissing one or more defenses, on
the ground that a defense is not stated or has no merit” (CPLR 3211 [b]).
The moving party has the burden of establishing that the defense cannot be
maintained (Paladino v State of New York,
Ct Cl, Schweitzer, J., Sept.
15, 2005, Claim No. 110824, Motion No. M-70372, [UID # 2005-036-102]).
Defendant has asserted five affirmative defenses to this claim: lack of
jurisdiction, culpable conduct on the part of claimant as well as of a third
party, absolute immunity, and a reduction of claimant’s damages based
upon settlement with another tortfeasor. Claimant argues that there is no
defense to his claim, but fails to provide proof that any of the affirmative
defenses cannot be maintained (see Arquette v State of New York,
Claimant's motion for summary judgment and to strike defendant's answer is