Claimant's motion for summary judgment as to defendant's liability for injuries caused by an assault on claimant by fellow inmates is denied where questions of fact exist, including whether defendant failed to exercise reasonable care to protect claimant from a foreseeable risk of assault by a fellow inmate or inmates and whether defendant negligently failed to respond to the incident involving claimant in a timely manner.
|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||EDY RODRIGUEZ
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Anthony Rotondi, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 14, 2018|
|See also (multicaptioned case)|
Claimant moves for summary judgment on his claim alleging that defendant negligently failed to protect claimant from an assault by two fellow inmates and negligently failed to respond to the assault in a timely manner. Defendant opposes the claimant's motion.
In particular, the claim alleges that in May 2015, while claimant was serving as a representative on the Clinton Correctional Facility (Clinton) Inmate Liaison Committee, claimant sent a letter to the Clinton Deputy Superintendent of Security stating that claimant "was informed by a number of other inmates of rumors going around that [claimant] was going to be attacked and cut." Claimant alleges that he received no response to his letter and further alleges that in June 2015, he personally spoke to the Deputy Superintendent of Security about "rumors" that claimant was going to be attacked and that the Deputy Superintendent of Security responded by telling claimant to "Stop being a baby, This is Prison."
The claim asserts that on October 5, 2015, claimant was attacked by two fellow inmates in the "yard" and was cut by a "homemade knife."
The claim alleges that defendant's correction officers were not at their "assigned posts" and that this allowed the assault to continue for "approximately two minutes."
Claimant's affidavit in support of his summary judgment motion essentially repeats the allegations of the claim.
Neither the claim nor claimant's affidavit includes a copy of the letter claimant allegedly sent to the Deputy Superintendent of Security warning of the "rumors" that claimant would be attacked.
As a matter of procedure, a "motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).
Claimant's affidavit in support of his motion for summary judgment, together with his attached verified claim, provide a minimal basis for the Court to find that claimant has met his initial burden of showing that he is entitled to judgment as a matter of law on his claim that defendant negligently failed to protect him from a foreseeable risk of assault by fellow inmates and failed to stop the assault in a timely manner.
Having found that claimant satisfied his initial burden on his motion, the Court reminds that summary judgment is a drastic remedy that "should not be granted where there is any doubt as to the existence of [triable] issues [of fact], or where the issue is arguable" (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404  [internal quotation marks and citations omitted]; see Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept 2017]).
Further, "[i]t is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof)" (Vega v Restani Constr. Corp., 18 NY3d 499, 505 ).
The Court "must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact" (Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).794 [3d Dept 1998]).
The substantive law underlying the claim is well-settled:
"Having assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates" (Sanchez v State of New York, 99 NY2d 247, 252 ). "This duty, however, is limited to providing reasonable care to protect inmates from risks of harm that defendant knew or should have known were foreseeable" (Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). "The State . . . is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident" (Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).
In determining if the State provided reasonable care to protect an inmate from assault the court may consider whether the claimant had previous known encounters with his assailant or had listed his assailant on an "'enemies list' with the institution" (Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]). The court may also consider whether the assailant was "a known dangerous prisoner" (Auger v State of New York, 263 AD2d 929, 930 [3d Dept 1999]; see Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]). Further, the court may consider whether "claimant was a known assault risk" (Stanley v State of New York, 239 AD2d 700, 701 [3d Dept 1997]).
The State is also charged with the duty of protecting an inmate from reasonably foreseeable risks of harm based upon "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, 99 NY2d at 254 [emphasis in original]).
The fact that a correction officer is not present at the exact time and place of an assault does not rise to an inference of negligence absent a showing that facility officials had notice of a foreseeable dangerous situation (Colon v State of New York, 209 AD2d 842 [3d Dept 1994]; Padgett v State of New York, 163 AD2d 914 (4th Dept 1990), lv denied 76 NY2d 711 ).
A correctional facility superintendent has discretion to "provide for such measures as he may deem necessary or appropriate for the safety, security and control of correctional facilities" (see Correction Law § 137 and § 18; see Matter of Shabazz v Portuondo, 260 AD2d 733 [3d Dept 1999], lv denied 94 NY2d 756). In general, courts should defer to prison authorities in matters of internal prison security (Blake v Selsky, 10 AD3d 774, 775 [3d Dept 2004]).
Most significantly, the Court is well aware that "negligence cases do not usually lend themselves to summary judgment" (Smith v Moore, 227 AD2d 854, 855 [3d Dept 1996]). Consequently, the claimant in a negligence action "will generally be entitled to summary judgment 'only in cases in which there is no conflict at all in the evidence, the defendant's conduct fell far below any permissible standard of due care, and the plaintiff's conduct either was not really involved (such as with a passenger) or was clearly of exemplary prudence in the circumstances'" (Andre v Pomeroy, 35 NY2d 361, 365 , citing 4 Weinstein-Korn-Miller, N Y Civ Prac, par 3212.03).
Put simply, the determination in a negligence action as to whether a defendant's conduct falls short of the standard of ordinary care is an issue that "'can rarely be decided as a matter of law'" (Ugarriza v Schmieder, 46 NY2d 471, 475 , quoting Andre, 35 NY2d at 364).
In opposition to claimant's motion, the defendant has offered an attorney affirmation, the affidavit of the Clinton Deputy Superintendent of Security, with attached certified facility documents concerning the incident involving claimant, and the affidavit of a correction officer witness to "fighting" between claimant and an identified inmate.
The Clinton Deputy Superintendent of Security has attached to his affidavit the Unusual Incident Report prepared after the alleged assault, a copy of claimant's Involuntary Custody Hearing transcript and a copy of claimant's Tier II Disciplinary Hearing transcript.
The affidavit of the Clinton Deputy Superintendent of Security states the following: There is no record in the Clinton security file of the letter claimant alleges was sent to the Deputy Superintendent of Security prior to the incident; claimant never identified any specific inmate that posed a threat to him prior to the incident; claimant has never identified the inmate who cut him; claimant never requested protective custody prior to the incident; claimant testified at his Involuntary Custody Hearing (after the incident) that he did not know of any reason why the unidentified inmate cut him.
The affidavit of the correction officer who witnessed the "fighting" which led to the claim states that he was assigned to "duty at 21 post in the North Yard" and observed claimant and inmate Salsbery "trading close-fist punches" and "immediately issued a direct order for them to stop fighting. When they did not comply, I called the response team." The correction officer further states that "after several direct orders, they did comply and the responding officers escorted the two men to the facility hospital."
Finally, the correction officer asserts that:
"[T]here were 243 inmates in the North Yard. When a fight does occur, it is the responsibility of the officers at designated posts to order those involved to stop fighting. If they do not, we then call the response team in order to stop the fight. Corrections Officers at posts do not leave their posts to enter the yard to stop a fight. The incident seemed to be spontaneous and lasted less than a minute."
The Court finds, on this record, that questions of fact exist, including, but not limited to, whether defendant failed to exercise reasonable care to protect claimant from a foreseeable risk of assault by a fellow inmate or inmates and whether defendant negligently failed to respond to the incident involving claimant in a timely manner.
Claimant's motion for summary judgment as to defendant's alleged liability for negligently failing to protect him from an assault by a fellow inmate, and for negligently failing to timely respond to the incident, is denied.
November 14, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Notice of Motion for Summary Judgment, filed July 23, 2018;
2. Affidavit of Edy Rodriguez, sworn to June 6, 2018, and annexed exhibits;
3. Affirmation of Anthony Rotondi, dated August 22, 2018, and annexed exhibits, including affidavits of Theodore Zerniak, sworn to August 7, 2018 and the affidavit of Travis Stewart, sworn to August 13, 2018;
4. Unsworn Reply of Edy Rodriguez, affirmed under penalty of perjury on September 6, 2018.