New York State Court of Claims

New York State Court of Claims
CORTES v. THE STATE OF NEW YORK, # 2010-030-028, Claim No. 108363


After unified trial, claimant failed to establish State liability for assault by fellow inmates. Claim also dismissed for failure to timely serve claim or notice of intention (NI served 92nd day).

Case information

UID: 2010-030-028
Claimant(s): JOSE CORTES
Claimant short name: CORTES
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 108363
Motion number(s):
Cross-motion number(s):
Claimant's attorney: JOSE CORTES, PRO SE
Third-party defendant's attorney:
Signature date: September 8, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Jose Cortes alleges in his claim that defendant's agents at Fishkill Correctional Facility failed to protect him from an attack by fellow inmates on or about February 10, 2002. Trial of the matter was held on July 23, 2010.

As an initial matter defendant made a motion to dismiss the claim based upon the second affirmative defense contained in its verified answer. [See Verified Answer, 4]. Such defense asserts that the Court lacks jurisdiction because neither a claim nor a notice of intention to file a claim was served upon the defendant within 90 days of accrual of the claim on February 10, 2002. The claim itself indicates that a notice of intention was served on May 9, 2002, and claimant indicates that the document "left his hands"(1) on May 8, 2002.

Nonetheless, it appears that the notice of intention was served on the 92nd day following the incident, in that it was received in the Office of the Attorney General on May 13, 2002, as shown on a file stamped copy of the claim and the envelope in which it was received. [See Exhibit B].

Court of Claims Act 11(a) provides that the claim or a notice of intention to file a claim must be served personally or by certified mail, return receipt requested, upon the Attorney General within the times prescribed in Court of Claims Act 10; and that service is complete when such documents are received in the Attorney General's Office. Court of Claims Act 11(a)(i). A failure to serve the claim or a notice of intention during the time period and in the manner required results in a lack of personal jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act 11(c).(2)

In this case, Mr. Cortes was required to serve either a notice of intention to file a claim or the claim itself within 90 days of February 10, 2002, based upon the cause of action asserted in the claim (a negligent failure to protect him from an assault by fellow inmates). Court of Claims Act 10(3). Because the notice of intention was not served in a timely manner, the claim subsequently served in or about October 2003 was also not timely. The defense was appropriately raised in the answer and, accordingly, the Court is constrained to dismiss the claim on this ground alone.

More substantively, claimant did not establish the elements of his claim in any event.

Mr. Cortes testified that on the morning of February 10, 2002 he had gone to the dormitory bathroom to brush his teeth in anticipation of a visitor. As he was doing so, an unknown assailant attacked him from behind, cutting him on the right ear toward his cheek near his sideburn. He was bleeding profusely. He said he "fell to the ground, was dizzy", and "could not see clearly" to determine how many assailants there were, although he thought there were four or five people. As he got up he grabbed a mop - it broke into two pieces - and he started swinging, not wanting to be struck again. He saw someone running out of the bathroom and followed him, throwing the "mop wringer" at the apparent assailant. Mr. Cortes said he was yelling at that point.

Officers interceded, and he was sent by ambulance to an outside hospital for treatment. He received seven or eight stitches. Photographs taken in connection with the incident show Mr. Cortes with a profusely bleeding wound in the area he indicated. [Exhibit 1]. What appears to be the weapon which inflicted the injury is depicted in photographs as well. [Id.].

When he returned from the hospital several days later, he was served with a misbehavior report. [Exhibit 2]. He was charged with possessing a weapon. [Id.]. The report also indicates that Mr Cortes was observed chasing an inmate whom the writer could not identify, and that he had a "mop pipe in his right hand." [Id.]. Another inmate was seized, and a shank with blood on it was seized as well. [Id.].

Mr. Cortes indicated at trial that to this day, he does not know why he was attacked. All he knew was "this guy came and stabbed me from behind. I wish I can ask him why he did it , I never had an issue with this guy." Mr. Cortes also noted that the bathroom had two entrances. One of these entrances could not be easily observed by correction personnel. Mr. Cortes argued that the incident would not have occurred if the "back door" to the bathroom had been kept shut.

Mr. Cortes was observed by the Court to have an approximately four-inch scar. He said that he experiences numbness in part of the area harmed, and seeks damages in the amount of $250,000.00.

On cross-examination Mr. Cortes acknowledged that he never identified his assailant, repeating that he "had [his] head down, brushing [his] teeth" and could not see, except to note that there appeared to be more than one person. He said he did not make any noise until he went into the hallway chasing the apparent assailant. He also acknowledged that at that time of day, there are usually inmates moving around, brushing their teeth as he was, and heading out for showers and visits.

In the various to/from memoranda reporting the assault, the correction officers responding describe hearing "loud noise toward the back of K unit," observing Mr. Cortes bleeding profusely from the right side of his head, and holding the mop handle, searching the area and finding the bloody shank in one inmate's bed sheets, and interviewing claimant and others. [Exhibit A]. Although 21 inmates were apparently interviewed, the interviews were "not productive." [Id.].

No other witnesses testified and no other evidence was submitted.

While the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates, the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not alone give rise to the inference of negligence. Blake v State of New York, 259 AD2d 878 (3d Dept 1999); Sebastiano v State of New York, 112 AD2d 562 (3d Dept 1985). More broadly, in order to establish liability on the State's part, 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 that was reasonably foreseeable and inadequately addressed. Sanchez v State of New York, 99 NY2d 247, 253-254 (2002). " 'The State will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable' (Codrington v State of New York, 19 AD3d at 444)." Smart v State of New York, 65 AD3d 1218 (2d Dept 2009), affg Smart v State of New York, UID # 2007-029-053, Claim No. 98024 (December 21, 2007, Mignano, J).

While actual knowledge with respect to the foreseeability of a given assault

"offers a bright-line test . . . - what the State reasonably should have known - for example, from its knowledge of risks to a class of inmates based on the institutions's expertise or prior experience, or from its own policies and practices designed to address such risks . . ." may also be established. Sanchez v State of New York, supra(3) at 254 (citations omitted, emphasis in original)

Upon review of the evidence, including listening to Mr. Cortes testify and observing his demeanor as he did so, the Court finds that claimant has failed to establish that defendant was negligent and that such alleged negligence was a proximate cause of his sudden assault and injury.

The inherent risk of violent activity in a correctional facility housing dangerous individuals does not mandate imposition of liability for inmate-on-inmate assaults that are not reasonably foreseeable. In this case, there has been no showing that the claimant was known to be at risk either generally or that his attacker was known or should have been known for his violent propensities (indeed, the attacker was not identified). There was no indication that claimant was in any particular danger from anyone or that any unusual events were transpiring on that day.

Without some expert testimony, such as that offered in Sanchez v State of New York, supra, to show that the inmate-to-officer ratio was not within penological standards of care, for example, or that the methodology used to prevent weapons from being brought into the housing unit was flawed, the Court cannot infer from these facts that the unseen, sudden assault on this claimant was a foreseeable, preventable, result of the State's negligence.

Once personnel were aware of his injury, by his own testimony Mr. Cortes received immediate medical treatment. While it is unfortunate that Mr. Cortes was injured in an apparently unprovoked attack, he has failed to establish by a preponderance of the evidence that the defendant should be held liable for failing to protect him from same.

Based on the foregoing, Claim Number 108363 is dismissed both because the Court lacks jurisdiction based upon a failure to timely serve the claim and, more substantively, because claimant has failed to establish all the elements of his claim.

Let judgment be entered accordingly.

September 8, 2010

White Plains, New York


Judge of the Court of Claims

1. Quotations are to audio recordings or trial notes unless otherwise indicated.

2. "Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in [11(a)], or (iii) the verification requirements as set forth in [11(b)] and [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure."

3. It is noted that the majority opinion - addressing the concerns of the dissent - declares that " we underscore that the State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate." The majority confirms that in the case before it there was simply a triable issue, given "uncontested evidence of State rules and regulations relevant to foreseeability; uncontested evidence of an elevated risk of inmate-on-inmate attack during congregate 'go-back' time; and uncontested evidence of both the regularity of the correction officer's inattentiveness at precisely that time and the officer's inability to see claimant at the location where he was required to stand."