Claim alleging only that an inmate was slashed in the face by another inmate failed to sufficiently allege how the State was negligent and was therefore dismissed for failing to meet the pleading requirements of Court of Claims Act § 11 (b).
|Claimant short name:||SNOWE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Kelly Snowe, Pro Se|
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Paul F. Cagino, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 2, 2018|
|See also (multicaptioned case)|
Defendant moves to dismiss the instant claim pursuant to CPLR 3211 (a) (7) on the ground it fails to meet the pleading requirements of Court of Claims Act § 11 (b).
Claimant, a prison inmate proceeding pro se, seeks damages for personal injuries sustained when he was assaulted by a fellow inmate. The claim alleges, in pertinent part, the following:
"On the day of 9-18-17 at approx. 10:15 pm in the inmate bathroom/shower, [I] inmate Kelly Snowe #16-A-5176 was cut with a sharp object across my left lower jaw-bone line by another inmate. The object caused me to have a 4 inch scar plain view on my face, enclosed is the ticket of [sic] in which the officer said he seen with his own 2 eyes."
Section 11(b) of the Court of Claims Act requires that a claim state "the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and . . . the total sum claimed." Inasmuch as "all of the requirements in section 11(b) are 'substantive conditions upon the State's waiver of sovereign immunity' ", the failure to satisfy any one of the conditions is a jurisdictional defect requiring dismissal of the claim (Kolnacki v State of New York, 8 NY3d 277, 280  [citation omitted]; see also Kobrin v State of New York, 144 AD3d 1542 [4th Dept 2016]; Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015]; Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept 2013]; Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010], lv dismissed 15 NY3d 911 ; Nasir v State of New York, 41 AD3d 677 [2d Dept 2007]; Mujica v State of New York, 24 AD3d 898 [3d Dept 2005], lv denied 7 NY3d 701 ). The guiding principle in determining the sufficiency of a claim is whether it is sufficiently definite " 'to enable the State. . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' . . ." (Lepkowski v State of New York, 1 NY3d 201, 207 , quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). "The statement must be specific enough so as not to mislead, deceive or prejudice the rights of [defendant]" (Demonstoy v State of New York, 130 AD3d 1337, 1337 [3d Dept 2015] [internal quotation marks and citation omitted]).
To satisfy the requirement that the "nature" of the claim be stated, sufficient facts must be alleged to at least permit an inference as to "the manner in which the claimant was injured and how [defendant] was negligent" (Heisler, 78 AD2d at 767-768 [internal quotation marks omitted]; see also Deep v State of New York, 56 AD3d 1260 [4th Dept 2008]; Czynski v State of New York, 53 AD3d 881 [3d Dept 2008], lv denied 11 NY3d 715 ; Klos v State of New York, 19 AD3d 1173 [4th Dept 2005]; Rodriguez v State of New York, 8 AD3d 647 [2d Dept 2004]; Cendales v State of New York, 2 AD3d 1165 [3d Dept 2003]; Ferrugia v State of New York, 237 AD2d 858 [3d Dept 1997]). Defendant contends that although the manner in which the claimant was injured was alleged in the claim, the manner in which the State was negligent was not. According to the defendant, this omission constitutes a jurisdictional defect requiring dismissal of the claim.
While the State must safeguard inmates in its custody from foreseeable attacks by fellow inmates, it is not an insurer of inmate safety and the mere happening of an assault and battery, without more, is insufficient to cast the State in liability (Sanchez v State of New York (99 NY2d 247, 252 ; Flaherty v State of New York, 296 NY 342 ; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006] ). Rather, liability may arise from what the State knew or should have known regarding: (1) the risk of harm to a class of inmates which included the victim (Sanchez, supra), (2) the dangerous propensities of the assailant (Blake v State of New York, 259 AD2d 878 [3d Dept 1999]; Littlejohn v State of New York, 218 AD2d 833 [3d Dept 1995]), or (3) the risk of an assault and the failure to prevent it despite an opportunity to do so (Huertas v State of New York, 84 AD2d 650 [3d Dept 1981]; see also Matter of Sandlin v State of New York, 294 AD2d 723, 725 [3d Dept 2002]; Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Evans v State of New York, 11 Misc 3d 1065 [A] [Ct Cl 2006]). Here, no facts are alleged which would permit the State to infer the manner in which it is alleged to have been negligent with regard to the assault upon the claimant (cf. Davila v State of New York, 140 AD3d 1415, 1417 [3d Dept 2016] [where the claim is based upon facts gathered from the State's investigation, "it cannot be readily found that a lack of specificity has interfered with defendant's ability to investigate a claim"]). Absent some factual predicate for the assertion of liability against the State, the claim fails to adequately state the nature of the claim and must be dismissed.
Accordingly, defendant's motion is granted, and the claim is dismissed, without opposition.
January 2, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims