New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2006-044-507, Claim No. 108217, Motion No. M-72161


Questions of fact as to whether defendant’s denial of Involuntary Protective Custody after claimant’s attack by an unknown assailant constituted negligence mandated denial of claimant’s summary judgment motion. Motion to strike the answer is also denied.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 24, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


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 motion.

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:
* Inmate has not been involved in any fights in the past several years.
* Inmate does not desire protective custody.

No weapon was used - inmate received slight bruise.
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 custody.

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 psychological trauma.

“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, supra; Evans v State of New York, Ct Cl, Ruderman, J., Jan. 31, 2006, Claim No. 100170, [UID # 2005-010-069]).[1]

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.[2] He simply avers that “there is no defense to the cause of action set forth in the claim herein”.[3] 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, 190 Misc 2d 676).[4]

Claimant's motion for summary judgment and to strike defendant's answer is denied.

October 24, 2006
Binghamton, New York

Judge of the Court of Claims

The following papers were read on Claimant’s motion for summary judgment:

(1) Notice of Motion filed August 18, 2006, Affidavit in Support of Everton Brown sworn to on August 15, 2006, and Memorandum of Law dated August 15, 2006 with annexed Exhibits A through F;

(2) Affirmation in Opposition of Joseph F. Romani, AAG filed September 11, 2006.

Filed papers: Claim filed September 2, 2003; Verified Answer filed October 2, 2003.

[1]. Claimant initially alleged to prison officials he did not know the identity of either assailant (although he later identified the second assailant from a photo array). and, as suchAccordingly, defendant could not be expected to know that the assailant(s) posed a risk to claimant (Sanchez, supra). Additionally, there is no evidence was presented that defendant had notice and opportunity to intervene to protect claimant and yet failed to do so (id.).
[2].The CPLR does not authorize a “motion to strike denials, whether because sham or frivolous or interposed in bad faith” and, if the denials are in proper form, the remedy is for the claimant to prepare his or her proof to be ready for trial (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3018:4).
[3]. Claimant's Affidavit in Support of Motion for Summary Judgment, ¶ 5.
[4]. A party’s pleading may also be stricken (as a sanction) when there is a clear showing that such party’s “failure to comply with discovery demands is willful, contumacious, or in bad faith [citation omitted]” (Harris v City of New York, 211 AD2d 663, 664; see also Mendez v City of New York, 7 NYAD3d 766, 767), or where some other egregious behavior has occurred. Claimant makes no such showing in this instance.