New York State Court of Claims

New York State Court of Claims

RASCOE v. THE STATE OF NEW YORK, #2009-038-504, Claim No. 112145, Motion No. M-75787


Claimant’s motion for summary judgment denied. Motion lacked evidentiary support for contention that defendant knew or should have known of inmate assailant’s assaultive history.

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:
ANDREW M. CUOMO, Attorney General of the State of New York
Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 12, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking damages for injuries he sustained when he was allegedly assaulted by another inmate. Specifically, the claim alleges that while restrained by handcuffs and a waist chain and while awaiting an escort from a visiting area to his Special Housing Unit, claimant was assaulted by an unknown assailant. The claim alleges that defendant was negligent in securing claimant, that its agents knowingly and willingly allowed another inmate to escape from his mechanical restraints and attack claimant, and that defendant’s agents breached 7 NYCRR § 305.3 (c)(3), which addresses the use of mechanical restraints. Claimant now moves for summary judgment on the claim; the motion is opposed by defendant. It is well established that on a motion for summary judgment, the movant must establish, by admissible proof, the right to judgment as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). If the movant does not make this prima facie showing, the motion must be denied (id.). Here, to prevail on his motion, the admissible evidence submitted by claimant must demonstrate that the attack by another inmate was reasonably foreseeable (see Sanchez v State of New York, 99 NY2d 247, 252 [2002]). More particularly, claimant must demonstrate that the State “knew or had reason to know” (id. at 255) that: (1) claimant was at risk of assault (2) the assailant was prone to perpetrate an attack or (3) that surrounding conditions were likely to engender or facilitate an attack, and that defendant failed to act to address the foreseeable attack (see Gangler v State of New York, 302 AD2d 964, 964 [4th Dept 2003]; Mann v State of New York, 8 Misc 3d 1028[A], *6 [Ct Cl 2005]).

Here, claimant contends that his assailant – now known to be Inmate Golden – had a violent and assaultive history (see e.g. Littlejohn v State of New York, 218 AD2d 833, 834 [3d Dept 1995]). Claimant avers, without documentary or other support, that “[a] cursory look into assailants [sic] disciplinary history while incarcerated will reveal that his assaultive behavior has neither abated nor moderated, but rather has escalated since his arrival at Upstate Correctional Facility” (“Summary Judgment Motion” of Ronald Rascoe, ¶ 4, sworn to Oct. 17, 2008). Lacking any evidentiary support, these mere statements by claimant are insufficient to establish the assaultive history of inmate Golden or that defendant knew of his alleged history. Thus, as claimant’s motion does not demonstrate that the attack on claimant was reasonably foreseeable, he has not demonstrated his entitlement to judgment as a matter of law. Moreover, the motion is unsupported by any evidence in support of the allegations in the claim that defendant’s agents knowingly and willingly allowed the assault to occur or that they improperly restrained inmate Golden in violation of 7 NYCRR § 305.3 (c)(3). Accordingly, it is

ORDERED, that Motion No. M-75787 is DENIED.

January 12, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 112145, filed March 29, 2006;

(2) Notice of Motion, dated October 20, 2008;

(3) Affidavit in Support of Motion – For Summary Judgment, unsworn;

(4) “Summary Judgment Motion,” sworn to Oct. 17, 2008, with copies of pleadings appended;

(5) Defendant’s Affirmation in Opposition to Claimant’s Motion for Summary Judgment,

dated November 17, 2008.