New York State Court of Claims

New York State Court of Claims

BOYD v. STATE OF NEW YORK, #2007-010-018, Claim No. 109224


Inmate who testified against the Gotti crime family did not establish that attack was related.

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):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 19, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for injuries he sustained during his incarceration at Green Haven Correctional Facility (Green Haven) when he was assaulted by another inmate on June 15, 2001.[1] In 1991, claimant testified in federal court against members of the Gotti crime family.

In June 2000, claimant was transferred from Sullivan Correctional Facility (Sullivan) to Green Haven. Claimant contends that despite his continued requests to be placed in voluntary protective custody, he was not. He further contends that the attack on him was foreseeable and that defendant’s failure to place him in protective custody was a proximate cause of the attack. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Claimant testified that in 1991, during his incarceration at Sing Sing Correctional Facility, he became friends with an inmate named Robert Francella a.k.a. “Bobby Fingers.” Through Francella, claimant offered to try to influence a juror who was serving in the racketeering trial of Peter Gotti in the Eastern District Federal Court. Thereafter, claimant had second thoughts and he contacted the Office of the United States Attorney and cooperated with them by testifying in federal court as to his involvement with Francella and others regarding the jury tampering efforts. Claimant pleaded guilty to obstruction of justice and was sentenced to time served. In January 2000, claimant was transferred from the federal correctional system to the state correctional system and was incarcerated at Sullivan, where he was placed in voluntary protective custody pursuant to his request.

Six months later in June 2000, claimant was transferred from Sullivan to Green Haven. Claimant’s transfer summary stated: “REASON FOR TRANSFER: 04 UNSUIT-SEPAR. FROM INM” (Ex. 2). There was no testimony explaining what “04” referred to; there was testimony from defendant that the rest of the information referred to protective custody or administrative segregation. The “EXPLANATION FOR TRANSFER” stated:
(id.). The transfer summary also stated that claimant “SHOULD PARTICIPATE IN VOCA, WORK, SUBST, ABUSE AGGRESSION, COMM PREP, PERS AND RELA PROGRAMS” (id.).

According to claimant, he made numerous requests for placement in voluntary protective custody when he first arrived at Green Haven. Claimant’s initial request was to Sergeant Ward. Claimant related that he had been a witness in a federal trial and that there was a contract on his life and he feared for his safety. Claimant was not placed in protective custody. According to claimant, he then wrote a letter to the captain and the acting captain responded by letter. Neither of these letters, nor copies, were produced at trial. Claimant testified that he also wrote several letters to the Inspector General and never received a response. Claimant did not offer copies of those letters at trial. Thereafter, claimant repeated his request for protective custody to Sergeant Keyser. Claimant was never placed in protective custody at Green Haven.

On June 15, 2001, claimant gave a presentation to a group of inmates as part of the facility’s transitional services program. After the session, at approximately 11:00 a.m., as claimant and approximately 200 other inmates were heading back to their housing units, claimant was assaulted by Mark Digeorgio, one of the attendees at the presentation. Claimant did not know Digeorgio and he had no reason to fear him. Digeorgio punched claimant’s face and, according to claimant, Digeorgio uttered, “Rat bastard. This is from Bobby Finger.”[2] Claimant testified that Digeorgio was not a known enemy of claimant prior to the attack and was, therefore, not listed on his enemies list. Claimant testified that he had indicated to the New York State Department of Correctional Services (DOCS) that his enemies would include anyone affiliated with the racketeering case in which claimant had provided testimony. Digeorgio was never connected to the case or to the Gotti crime family.

Claimant waited until 5:10 p.m. on June 15, 2001 to report his injuries at sick call. At that time, claimant advised the nurse that at approximately 1:00 p.m. he had been playing basketball and had been struck in the eye by another inmate’s elbow. He did not report that he had been assaulted. He also did not request protective custody. In fact, claimant was offered protective custody and refused the offer (Ex. B). Subsequently, after an Involuntary Protective Custody hearing, claimant was placed in involuntary protective custody. Claimant testified that the reason he had refused protective custody after the assault was because his natural instinct was to get even.[3] The following morning, claimant went to see Digeorgio with the intention of ensuring that there would not be another attack on claimant.

Thomas Levanduski, a retired Senior Correction Counselor at Green Haven, testified that he had conducted claimant’s Involuntary Protective Custody hearing after the attack at Green Haven (Ex. C). The hearing record sheet revealed that claimant indicated that he was not in need of protective custody (id.). As a result of the hearing, claimant was placed in involuntary protective custody to provide protection to him and to prevent retaliation. Levanduski testified that, if DOCS knew that an inmate had a problem with a certain group of people, an inmate could be placed in involuntary protective custody even if he did not identify his assailant.

Lieutenant Richard Ward,[4] who has been employed by DOCS for 25 years, testified that if an inmate states “mob” or “Italians” are after him, there is nothing the State can do to safeguard that inmate because there is no way of identifying an inmate as a mob affiliate, agent, or associate. More specific information would be necessary to identify potential assailants. Ward stated that when an inmate requires protective custody, an investigation is done before that inmate is placed in protective custody to ensure that the inmate would not be a danger to those already in protective custody and that those in protective custody are not known enemies to the inmate requesting protective custody. Ward was questioned about claimant’s transfer summary and explained that administrative segregation is usually for inmates who are gang leaders or who direct gang members to attack another inmate.
It is well settled that the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks of harm (see Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). Foreseeable risks of harm include the risk of attack by other prisoners (see Littlejohn v State of New York, 218 AD2d 833). That duty, however, does not render the State an insurer of inmate safety (see Sanchez v State of New York, 99 NY2d 247). The State’s duty is to exercise reasonable care to prevent foreseeable attacks by other inmates (see Padgett v State of New York, 163 AD2d 914). The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State actually knew, but also “what the State reasonably should have known - for example, from its knowledge of risks to a class of inmates based on the institution’s expertise or prior experience, or from its own policies and practices designed to address such risks” (Sanchez v State of New York, supra at 254 [emphasis in original]). Indeed, Lieutenant Ward testified that more specific information is necessary to effectively safeguard an inmate from potential assailants because there is no way of identifying an inmate as a mob affiliate, agent, or associate. Claimant’s assailant was not on claimant’s enemies list and claimant testified that he did not have reason to believe he would be subject to attack by Digeorgio. Digeorgio was never linked to the Gotti crime family or to the federal case in which claimant provided testimony and the Court did not find the statement attributed to Digeorgio to be of sufficient weight to establish that connection.

To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act (see Colon v State of New York, 209 AD2d 842, 844). “The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable” (Wilson v State of New York, 303 AD2d 678, 679).

Upon listening to claimant testify and observing his demeanor as he did so, the Court found him to be less than credible. Curiously, claimant testified that he had repeatedly requested protective custody because he was fearful of being attacked, yet after he was attacked he lied about the incident at sick call and then refused the offer of protective custody. He did not timely report his injuries nor was he forthright in relating how his injuries were sustained. He testified that he refused protective custody because his instinct was to get even. The Court finds that claimant appeared to be calculating in his testimony and that his alleged continued requests for protective custody were not believable. There was no evidence presented at trial to clarify the ambiguity of claimant’s transfer summary from Sullivan to Green Haven which referred to protective custody or administrative segregation, but also directed that claimant should participate in numerous programs. Therefore, it remains unclear as to whether the transfer summary directed that claimant be segregated from other inmates at Green Haven or whether he had been so housed at Sullivan and upon transfer to Green Haven segregation was no longer warranted. As testified to by claimant, upon return from the program at which he was a speaker, there were approximately 200 other inmates heading back to their housing units. Claimant could have been attacked by anyone of those hundreds of inmates for a variety of reasons. The Court does not credit claimant’s testimony that his attack was related to the Gotti crime family and there was no evidence, other than claimant’s own self-serving testimony, linking his assailant to the Gotti crime family (see DiDonato v State of New York, 25 AD3d 944 [claimant denied protective custody and was allegedly assaulted by gang member; held no direct evidence linked unknown assailant to any gang and assaults occur for a variety of other nongang-related reasons]).

In sum, the Court finds that the attack on claimant was random and not foreseeable and that there is a lack of credible evidence sufficient to sustain claimant’s burden of proof.

Accordingly, defendant’s motion to dismiss, upon which decision was reserved, is now GRANTED.


June 19, 2007
White Plains, New York

Judge of the Court of Claims

[1]. While the claim alleged that the assault occurred June 14, 2001, claimant testified that the assault occurred June 15, 2001.
[2].The Court allowed claimant to testify, over defendant’s objection, to Digeorgio’s statement.
[3]. It is noted that claimant also testified that in September 1992, he was stabbed while incarcerated at Clinton Correctional Facility.
[4]. Ward was promoted from Sergeant to Lieutenant in 2002.