New York State Court of Claims

New York State Court of Claims

REMELT v. THE STATE OF NEW YORK, #2009-015-181, Claim No. 113319A, Motion No. M-76424


Defendant's motion to dismiss prose inmate's claim for damages arising out of an assault was denied. Claim sufficiently stated a cause of action for negligence.

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:
Michael Remelt, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 26, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss the instant claim for failure to state a cause of action pursuant to CPLR 3211 (a) (7). Claimant, an inmate proceeding pro se, seeks damages for injuries allegedly sustained when he was assaulted by an unidentified assailant at Great Meadow Correctional Facility on January 19, 2006. The claim alleges in pertinent part the following:
"Claimant, Michael Remelt, is an inmate at the Great Meadow Correctional Facility, a maximum security prison ... Claimant Remelt is a maximum security inmate, and is an OMH level 1 inmate, who is required to be housed in a separate housing unit from those inmates housed in general population.

While enroute to the messhall to eat, while being escorted by security staff, claimant Remelt was assaulted by another inmate, causing Remelt to be knocked to the floor and cutting his face on a metal garbage can. The laceration to Remelt's face was above his right eyelid and required 20 stitches to close. . .

Remelt was struck from behind by the other inmate... To Remelt's knowledge and belief, an inmate was later charged with the assault and later removed from the facility. Prior to being escorted to the messhall, claimant Remelt had spoke with security staff, indicating that there was unrest in the housing unit and that he had feared for his safety because 'the word was out' that a particular inmate who also housed in the in the OMH unit, was going to assault Remelt, as well as many inmates he could 'get his hands on.' Remelt was told that that the officers would watch and would see to it that nothing happens. On the way to the messhall however, Remelt was assaulted...
* * *
Remelt maintains that the state has a duty to protect prisoner's such as himself from assault by other inmates. Although this was an unprovoked attack by another inmate, Remelt had brought it to the attention of security staff that the other inmate was going to assault him as well as other inmates. On this basis, Remelt submits that this assault was foreseeable by security staff, and that security staff was in a position prior to the incident to prevent the harm of Remelt..."

On a motion to dismiss a claim pursuant to CPLR 3211 (a) (7) the court is required to “accept the facts as alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see also Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Thus, a determination on the motion is made by reference to whether “the proponent of the pleading has a cause of action, not whether he has stated one” (Id. at 88).

It is settled that the State has a duty to safeguard inmates even from attacks by fellow inmates (Sanchez v State of New York, 99 NY2d 247; Di Donato v State of New York, 25 AD3d 944 [2006]). This duty does not require "unremitting surveillance in all circumstances" nor does it cast the State in the role of an insurer of inmate safety (Sanchez v State of New York, 99 NY2d at 256). Rather, the scope of the duty is limited to risks of harm that are reasonably foreseeable, which includes not only what the defendant knew but also what it should have known (Id. at 253, 255; see also, Smith v County of Albany, 12 AD3d 912 [2004]).

Accepting the allegations in the claim as true and according the claimant the benefit of every favorable inference, the claim states a cause of action for negligence in that it alleges the defendant was advised of a potential assault moments before the claimant was attacked. Such awareness at least makes the existence of foreseeability arguable.

Accordingly, the defendant's motion to dismiss the claim for failure to state a cause of action is denied.

June 26, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 19, 2009;
  2. Affirmation of Paul F. Cagino dated March 19, 2009 with exhibits.