New York State Court of Claims

New York State Court of Claims

DELACRUZ v. THE STATE OF NEW YORK, #2007-044-023, Claim No. 108209


Defendant found 100% liable for claimant’s injuries received in an assault; claimant had advised guard of a previous incident between the inmates and that he was concerned about further altercations, and the inmates were in a classroom together on a regular basis. Damages trial to be scheduled.

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. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 6, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, brings this claim against defendant State of New York (defendant), alleging that he was assaulted on March 11, 2002 at Elmira Correctional Facility (Elmira) due to negligent supervision by the Department of Correctional Services (DOCS). Claimant also seeks to recover for his wrongful discipline and segregation as a result of the attack, and further states a third cause of action for punitive damages. Trial of the matter was held at Elmira on October 23, 2007.

Claimant testified that he had previously had an altercation with another inmate, named Gaston, while incarcerated at Attica in January 2001. As a result of that incident, claimant was placed in keeplock for 30 days.

Around the date the incident in question occurred, claimant was taking an inmate program in the evenings. At some point, Inmate Gaston began taking the class as well. Claimant testified that he became concerned about the possibility that he might be in danger from Gaston, so he approached Correction Officer Pietro with another inmate who interpreted the conversation.[1] He said that the ensuing conversation took place sometime in January 2002. Claimant said he told Pietro that he and Gaston had previously had a fight, and that he was concerned about Gaston’s participation in the program. He asked Pietro to have Gaston removed from the program so that he (claimant) could complete the program. Claimant said that Pietro advised him to write a letter to the facility’s superintendent. Claimant said that he did write letters to the superintendent, both in Spanish and in English, but defendant took no action. Claimant submitted copies of the letters to the Court after the trial, with the Court’s permission. Those letters were dated January 22, 2002 and January 28, 2002, respectively.

Claimant was attending the program on the night of March 11, 2002. At the end of the program, when the inmates were getting ready to leave, the lights were suddenly turned off. While the lights were off, claimant was assaulted from behind and cut several times. When the lights came back on, he realized he was being attacked by Gaston. The altercation was subsequently broken up by correction officers.

Sergeant Pietro testified on behalf of defendant. Pietro confirmed that claimant had advised him of the previous problems with Gaston, and that the conversation had occurred prior to the March 11, 2002 incident. Pietro also confirmed that he had advised claimant to write a letter to the facility’s superintendent. Pietro said that he understood claimant’s request, which was to have Gaston removed from the program, even though the conversation was conducted through an interpreter.

The Inmate Injury Report describes three lacerations as a result of the incident: one to the right cheek approximately one inch in length (which reached claimant’s eye), a second under the right ear approximately 1/8 inch long, and a third across the right side of the back of his neck, approximately two inches long. The first laceration was closed with a steri-strip, and claimant was referred to the facility’s doctor for follow up. Claimant testified that he has also suffered blurred vision and discomfort in his right eye, due to injuries sustained in the assault, and has submitted medical records to substantiate his claim that the eye was injured.

The State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Blake v State of New York, 259 AD2d 878 [1999]). Despite this obligation, however, the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence (Sebastiano v State of New York, 112 AD2d 562 [1985]). In order to establish that the State is liable for such an assault, an inmate claimant must allege and prove that the State knew or should have known that there was a risk of harm to the claimant which was reasonably foreseeable and inadequately addressed (Sanchez v State of New York, 99 NY2d 247 [2002]; see also Flaherty v State of New York, 296 NY 342 [1947]).

In this instance, claimant’s testimony that he advised Officer Pietro of his previous fight with Inmate Gaston, and that he was concerned about the possibility of further violence, was confirmed by Officer Pietro himself. Claimant has clearly proven by a preponderance of the evidence that defendant was aware of the risk to claimant from this particular inmate. Moreover, defendant was aware that the risk was not simply that claimant and his assailant might encounter each other in the prison yard, but rather that claimant and Gaston were actually in a classroom together with numerous other inmates on a regular basis. The conclusion that claimant’s injuries were the direct and proximate result of defendant’s failure to take action based on a known risk, resulting in this foreseeable assault, is inescapable. Consequently, the Court holds that, with regard to claimant’s first cause of action for negligent supervision, defendant is 100% liable for claimant’s injuries.

Claimant’s second cause of action alleges that he was improperly disciplined as a result of the attack. He was sent to Upstate Correctional Facility for approximately two months as a penalty, before the determination was administratively reversed. This cause of action is without merit. Although the disciplinary determination was reversed, defendant is entitled to absolute immunity from claims for money damages relating to disciplinary hearings so long as it complies with the rules and regulations governing such hearings (Arteaga v State of New York, 72 NY2d 212 [1988]; Melette v State of New York, 163 AD2d 703 [1990]). Claimant submitted no evidence that defendant violated any rule or regulation, and his second cause of action is therefore dismissed.

Claimant’s third cause of action, for punitive damages, is also dismissed, as such damages are not an available remedy in the Court of Claims (Sharapata v Town of Islip, 56 NY2d 332 [1982]).

In light of claimant’s lack of facility with the English language, however, the Court finds that the interests of justice require that the trial be reopened pursuant to Court of Claims Act § 9 (8) for further testimony and evidence on the issue of damages, and in particular the severity and permanency of claimant’s eye injury (see generally Kay Found. v S & F Towing Serv. of Staten Is., Inc., 31 AD3d 499 [2006]; Matter of Dutchess County Dept. of Social Servs. v Shirley U., 266 AD2d 459 [1999]).

The Clerk of the Court is directed to enter interlocutory judgment in favor of claimant on the issue of liability for negligent supervision in accordance with this decision. Claimant’s second and third causes of action are dismissed. Trial on the issue of damages with regard to the first cause of action will be scheduled as soon as practicable.

Any and all motions on which the Court previously reserved or which were not previously determined at trial are hereby denied. Let interlocutory judgment be entered accordingly.

December 6, 2007
Binghamton, New York

Judge of the Court of Claims

[1]. Spanish is claimant’s native language. He testified at trial with the assistance of a correction counselorofficer who speaks Spanish, by consent of both parties.