New York State Court of Claims

New York State Court of Claims
VERGES v. THE STATE OF NEW YORK, # 2009-009-208, Claim No. 107755


Claimant sought damages for personal injuries suffered by him in an inmate-on-inmate assault which occurred at Cape Vincent Correctional Facility, when another inmate threw baby oil upon him, which had been heated to a boiling temperature in a hot pot. The Court found that claimant had failed to establish that the State knew, or should have known, of any risk of harm to claimant prior to this incident and therefore dismissed the claim.

Case information

UID: 2009-009-208
Claimant(s): ANGEL VERGES
Claimant short name: VERGES
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 107755
Motion number(s):
Cross-motion number(s):
Claimant's attorney: KOOB & MAGOOLAGHAN, ESQ.
BY: Joan Magoolaghan, Esq.,
Of Counsel.
Defendant's attorney: HON. ANDREW M. CUOMO
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant's attorney:
Signature date: December 21, 2009
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


In this claim, claimant seeks damages for personal injuries he suffered when he was assaulted during the early morning hours of August 10, 2001 at Cape Vincent Correctional Facility (Cape Vincent) where he was then incarcerated. Specifically, claimant alleges that another inmate, one Nelson Brana, threw baby oil, heated to boiling temperature, upon his face and torso while he was sleeping in his cube.(1) Claimant contends that the State was negligent by allowing inmates to use and possess metal hot pots, which were commonly known to be capable of being used to cause death or serious physical injury. Additionally, claimant contends that the State was further negligent in consistently failing to seize these items of contraband from inmates. Finally, claimant contends that the State was negligent in failing to appropriately protect claimant after he informed correction officers that he had been threatened by members of a gang within the facility.

During the trial, the parties stipulated to a certain number of basic facts, and trial testimony established other facts as well. It is therefore undisputed that claimant was sentenced to a period of incarceration under the care and custody of the New York State Department of Correctional Services on November 16, 2000. Ultimately, claimant was transferred to Cape Vincent, a medium security facility, on July 6, 2001, and was assigned to the A2 Dorm. The capacity of the A2 dorm at this time was 60 inmates, and it was filled to capacity. Inmates were housed in one or two person open cubes in this dorm.

Claimant testified that after his transfer to Cape Vincent, and prior to the assault on August 10, 2001, he was pressured to join the "Neta" gang by other members of that gang. According to claimant, these members wanted claimant to join their gang and then make arrangements with his wife to smuggle drugs into the facility during their visitations. Claimant further testified that when he refused to join the gang, he was threatened and accosted by gang members, and as a result he feared for his safety. Claimant testified that he reported these threats to two correction officers, Officer Dwyer and an unidentified "heavy set" officer, who were assigned to the A2 Dorm..

Claimant also testified about two specific incidents which occurred prior to the assault on August 10, 2001. First, according to claimant, approximately one to one and a half weeks prior to the assault he was surrounded and threatened by gang members while he was in the shower. He testified that he reported this incident to Officer Dwyer, and that she did not recommend that he take any further action such as requesting protective custody.

Secondly, claimant testified that approximately two to three days prior to the assault, someone threw a lit cigarette onto his personal blanket which was on his bed, and ruined the blanket. He testified, however, that he did not report this incident to any correction officer, but that he observed Officer Dwyer lift and inspect the blanket from the garbage can in which he had discarded it.

With regard to the assault on August 10, 2001, which forms the basis of this claim, claimant could only provide limited testimony, since he was sleeping when the assault occurred. He testified that while he was sleeping during the early morning hours of August 10, 2001, he woke up "burning" and that he immediately ran out of his cube screaming, trying to get to the bathroom. He also stated that he was "burning" along the whole right side of his face and chest, as well as on his back. Since he had been sleeping, he was unable to identify his assailant, nor could he provide, at the time, any other specific details of the assault.

Under cross-examination, claimant admitted that prior to the incident he had not reported any known enemies at Cape Vincent, and that he had not identified inmate Brana (identified subsequent to the incident as claimant's assailant) as a potential or known enemy. Furthermore, claimant acknowledged that he was aware of the procedure by which he could seek such protective custody, but that he had made no attempt to seek protective custody prior to the incident.

Clifford Rose and John Bresett, employees of the Department of Correctional Services at Cape Vincent at the time of the assault, were both called as witnesses by claimant. These witnesses were not working in the A2 Dorm at the time of the assault, but rather conducted an investigation of the incident. As testified to by Sergeant Rose, it was determined that the baby oil which was used in the attack upon claimant had been heated in a metal hot pot, and then was transferred to a plastic hot pot which was used to carry the oil to claimant's cube. One of the hot pots was recovered, and it was determined that it had belonged to an inmate who had been released from custody prior to the incident.

Sergeant Rose also testified as to the presence of gangs and gang activity at Cape Vincent and that inmate Brana, subsequently identified as the assailant, had gang involvement and was a member of the Neta gang. Additionally, Sergeant Rose testified as to standard and regular procedures which were followed in the A2 Dorm. He testified that random cube searches were conducted by correction officers on a daily basis. He testified that during the week, lights were turned off at 11:00 p.m., and that inmates were to remain in their cubicles after that time. He further testified that in the morning, inmate cooks were released from the dorm at 5:00 a.m., and that other inmates who needed to be seen at the infirmary were released at 6:00 a.m.

Under cross-examination, both Sergeant Rose and Mr. Bresett testified that none of the information obtained during their post-incident investigation was known prior to the assault against claimant on August 10, 2001.

Steve J. Martin was qualified as an expert (Exhibit 43) and testified on behalf of the claimant. Mr. Martin testified that, in his opinion, metal hot pots, which were available for use at the time of the incident herein, were capable of being used to cause death or serious physical injury, since these pots were capable of heating substances to a much higher temperature than plastic hot pots. Since these metal hot pots could cause death or serious physical injury, he considered them to be contraband. As a result, Mr. Martin was of the opinion that the decision to permit the possession of these metal hot pots on the A2 Dorm (where inmates were confined in open dorm cubes with a known gang presence) was contrary to good and accepted correctional practices. Furthermore, Mr. Martin was of the opinion that the failure of correction officers to seize these items (metal hot pots) of contraband also constituted a deviation from good and accepted correctional practice. He further opined that these deviations directly contributed to the injuries suffered by claimant.

Additionally, based on the trial testimony, Mr. Martin was of the opinion that correction officers at Cape Vincent were negligent in failing to take remedial action for the protection of claimant after being placed on notice that he had been threatened by members of the Neta gang.

Correction Officer Terry Davis was on duty in the A2 Dorm on the date of the assault, and was called as a witness for the defendant. He was the only officer on the floor at the time, and immediately responded when he heard screams from the claimant. Officer Davis testified that prior to this incident, claimant had never informed him of any fear from gang activity, or that he had received any pressure to join a gang, and that he had never reported any threats from gang members. Correction Officer Lisa Dwyer also was called as a witness by the defendant. As set forth above, Officer Dwyer had been identified by claimant as one of the two correction officers whom he had spoken to regarding the threats that he had received from members of the Neta gang.

Officer Dwyer testified that prior to the date of the incident, claimant had never reported to her that he was afraid, or that he was being harassed by gang members. She testified that claimant had never mentioned inmate Brana as a possible threat or enemy, and specifically denied that claimant had ever mentioned the alleged incident occurring in the shower, when claimant said he had been threatened by various gang members.

Officer Dwyer also specifically denied that she had removed claimant's burned blanket from a trash can, and testified that she had never removed any blanket whatsoever from any trash can during her employment.

Officer Dwyer also testified that hot pots and personal blankets were commonplace possessions among inmates on the A2 Dorm. She testified that she had, on prior occasions, confiscated hot pots from inmates for various reasons, although not necessarily for lack of a permit. Dale A. Artus, Superintendent of Clinton Correctional Facility was qualified as an expert, and testified on behalf of the defendant. Mr. Artus testified that although Cape Vincent housed inmates with a history of violent felony offenses, DOCS operated their facilities under a behavior based model, by which inmates were housed and assigned to particular level facilities based primarily on their behavior after they were incarcerated. He also testified that Cape Vincent had an ACA(2) accreditation (Exhibit L).

Based upon his review of the testimony and other evidence, Mr. Artus was of the opinion that correction officers and facility staff at Cape Vincent had not violated any State directives, policies, or statutes regarding claimant prior to the assault of August 10, 2001.


It is well settled that the State is required to use reasonable care to protect inmates of its correctional facilities from the foreseeable risk of harm (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 risk of harm includes the risk of attack by other prisoners (Littlejohn v State of New York, 218 AD2d 833). The duty to protect inmates from the risk of attack by other prisoners, however, does not render the State an insurer of inmate safety (Sanchez v State of New York, 99 NY2d 247). Rather, the scope of the defendant's duty of care is to exercise reasonable care to prevent attacks which are reasonably foreseeable (Sanchez v State of New York, supra). The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State 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]). Accordingly, "[t]he 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, supra at 256).

In this particular matter, claimant asserts that correctional staff at Cape Vincent were well aware of the presence of gang activity at the facility, and that an attack upon claimant was reasonably foreseeable based upon the prior threats from and confrontations with, gang members to which claimant testified.

In this particular matter, claimant places great emphasis on the manner in which this assault was carried out, in which his assailant utilized a metal hot pot to heat baby oil to a boiling temperature, and then transferred that oil to a plastic hot pot to carry the oil to claimant's cube, where it was then thrown upon claimant's face and torso. Claimant's expert has characterized the metal hot pot as contraband, and has opined that DOCS personnel breached its duty to protect claimant by failing to seize these items of contraband before the assault. It was established at trial, however, that hot pots were commonly used at Cape Vincent, and specifically in the A2 Dorm. Furthermore, these hot pots could be legally possessed by inmates with a permit. Since the possession and use of hot pots, therefore, was permitted for legitimate purposes, the Court does not find that these pots were inherently dangerous, and therefore cannot be considered contraband in each and every instance.

Furthermore, the crux of this matter is not the manner in which this assault was carried out, but rather whether the assault was reasonably foreseeable. In other words, was the State aware, or should it have been aware, that an assault of some nature might be carried out against claimant as a result of his refusal to engage in gang activity.

It has been previously acknowledged that gang activity and gang-related violence, is a serious problem in the State's correctional facilities. My esteemed and learned colleague, Presiding Judge Richard E. Sise, has noted that prison gangs have played a "detrimental and dangerous role" within correctional facilities in recent years, and that these gangs pose "particular difficulties [for] protecting inmates who may be targeted for harm not by another individual but by the unidentified members of a prison gang." (Douglas v State of New York, UID No. 2007-028-012, Claim No. 108585, [Ct Cl, May 17, 2007], Sise, P.J.).(3)

In order to establish that an assault was reasonably foreseeable in a case involving gang activity, liability must be based not upon a generalized fear of gang violence, but rather by the specificity of the threats by those gang members against the claimant of which the State had either actual or constructive knowledge. (Douglas v State of New York, supra; Rosario v State of New York, UID No. 2006-013-517, Claim No. 97663 [Ct Cl December 12, 2006] Patti, J.; Collins v State of New York, UID No. 2007-029-040, Claim No. 100508-A [Ct Cl, October 5, 2007] Mignano, J.). In this particular matter, although claimant never identified inmate Brana (his assailant) as a potential enemy, claimant did testify that he had advised correction officers of prior threats against him by Neta gang members, particularly referring to the incident which occurred in the shower area prior to the assault. Claimant further testified that the State also should have been constructively aware of potential problems, since he observed Officer Dwyer inspect the blanket which he had discarded after a lighted cigarette had been thrown upon it.

Claimant acknowledges, however, that he never directly advised any correction officer of the incident involving his blanket. Furthermore, prior to trial, he had never mentioned the incident which occurred in the shower area at anytime, including his deposition. Additionally, Officer Dwyer has specifically denied ever having any discussions with claimant, or receiving any complaints from him regarding prior threats of any nature. Also, no other officer who testified at trial was aware of any prior threats or gang-related pressure placed upon claimant.

As a result, this case essentially turns on the issue of claimant's credibility versus the credibility of Officer Dwyer. Based upon this Court's observation of claimant's demeanor and testimony at trial, the Court finds that claimant has failed to establish that he had notified correction officers of these particular threats, or of any other personal safety concerns, prior to the assault on August 10, 2001 (Di Donato v State of New York, 25 AD3d 944; Williams v State of New York, 291 AD2d 586). In reaching this determination, the Court has also considered the other testimony at trial, specifically that of other correction officers, and the fact that none were aware of any prior threats having been reported by claimant. Furthermore, the Court does not find any basis whatsoever to find that the State had constructive notice of any prior threats or impending assault.

Claimant also contends that the State failed to provide sufficient supervision of the inmates, providing Inmate Brana with the opportunity and time to both plan and carry out this assault. As was established at trial, at the time of the assault, the sole correction officer on duty in the A2 Dorm had been called to "man the gate" so that inmate cooks could be released to prepare breakfast, a duty which he performed on a daily basis. Claimant contends that he was therefore left unprotected at the time the assault occurred. However, it is well established that the State's duty to protect prisoners does not require unremitting supervision, and the mere fact that a correction officer may not have been present at the time an assault occurred does not create an inference of negligence (Colon v State of New York, 209 AD2d 842; Sanchez v State of New York, supra at 256).

In sum, this Court finds that claimant has failed to establish that the State knew, or should have known, that there was any risk of harm to claimant arising from gang activity, and as a result the assault against him on August 10, 2001 was not reasonably foreseeable. This claim must therefore be dismissed.

Any and all motions not heretofore ruled upon are hereby denied.


December 21, 2009

Syracuse, New York


Judge of the Court of Claims

1. Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.

2. American Correctional Association (Exhibit L).

3. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at