New York State Court of Claims

New York State Court of Claims

SIMMONS v. THE STATE OF NEW YORK, #2008-042-512, Claim No. 114255, Motion No. M-74574


Synopsis


The court issued a written decision and order dismissing the claim for failure to state a cause of action. Claimant now moves for leave to reargue on the ground that the court “misapprehended the facts” in rendering the prior decision and order. The court finds that the papers submitted by claimant do not establish that the court misapprehended matter of fact and the motion to reargue is denied.

Case Information

UID:
2008-042-512
Claimant(s):
CHRISTOPHER SIMMONS, 07-A-1109
Claimant short name:
SIMMONS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114255
Motion number(s):
M-74574
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
CHRISTOPHER SIMMONS, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 5, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings this motion for leave to reargue on the ground that the court “misapprehended the facts” in rendering a prior decision and order, filed on February 1, 2008, dismissing this claim for failure to state a cause of action. The following papers were considered by the court:
  1. Notice of Motion for Reargument, filed February 22, 2008
  2. Affidavit of Christopher Simmons, pro se, sworn to February 19, 2008
  3. Opposition affirmation of G. Lawrence Dillon, Esq., dated March 18, 2008

_________________________________



On January 30, 2008 this court issued a written decision and order, filed on February 1, 2008 dismissing this claim for failure to state a cause of action. Claimant now moves for leave to reargue on the ground that the court “misapprehended the facts” in rendering the prior decision and order. Claimant contends that his use of the phrase “unauthorized razor” [wielded in an unforeseen attack upon claimant by a fellow inmate] was sufficient in and of itself to state a cause of action against the defendant for negligent breach of security.

The defendant opposes the motion, arguing that there was no misapprehension of the facts, as the claim set forth no allegations of negligence.

As noted in the prior decision, the claim contained “no allegations whatsoever of any negligence on the part of the defendant. To the contrary, this was an inmate-on-inmate assault, which, according to the claim itself, was halted by the intervention of a correction officer. And, according to the claimant, the attack upon claimant was not foreseeable.”

Even assuming arguendo that the phrase “unauthorized razor” was intended by claimant to allege negligence, it would still be insufficient to set forth a cause of action. The State is not an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711; Casella v State of New York, 121 AD2d 495). The mere possession of a razor by an inmate, even when used in an attack against a fellow inmate, is insufficient to impose liability upon the defendant (Williams v State of New York, UID No. 2006-041-507, Claim No. 108088, November 22, 2006, Milano, J. [razor]; Ferens v State of New York, UID No. 2007-031-513, Claim No. 110083, September 28, 2007, Minarik, J. [razor-type weapon]; Martinez v State of New York, UID No. 2007-044-006, Claim No. 109221, March 1, 2007, Schaewe, J. [sharp instrument]).

The papers submitted by the claimant do not establish that the court misapprehended matters of fact (CPLR Rule 2221 [d] [2]). The motion to reargue is denied.



June 5, 2008
Utica, New York
HON. NORMAN I. SIEGEL
Judge of the Court of Claims