New York State Court of Claims

New York State Court of Claims
PORTO v. STATE OF NEW YORK, # 2017-038-569, Claim No. 126417, Motion No. M-90310


Claimant's motion for summary judgment denied. Even if the motion was not defective because it was unsupported by a copy of the pleadings, it does not demonstrate prima facie that the inmate-on-inmate attack on him in the facility recreation yard was reasonably forseeable.

Case information

UID: 2017-038-569
Claimant(s): WILLIAM PORTO
Claimant short name: PORTO
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126417
Motion number(s): M-90310
Cross-motion number(s):
Claimant's attorney: WILLIAM PORTO, Pro se
Defendant's attorney: ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 4, 2017
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking damages for injuries sustained when he was allegedly assaulted by another inmate at Green Haven Correctional Facility (CF) on December 28, 2014. Claimant moves for summary judgment. Defendant has submitted no papers in opposition.

Claimant's motion for summary judgment is not supported by a copy of the pleadings and therefore, it does not comply with CPLR 3212 (b). "[M]ovant's failure to include a copy of the pleadings in the papers supporting a motion for summary judgment 'require[s] summary denial of the motion' " (Greene v Wood, 6 AD3d 976 [3d Dept 2002] quoting Welton v Drobnicki, 298 AD2d 757, 757 [3d Dept 2002]) even if it possessed a copy of the pleadings and/or that the pleadings have been filed with the Clerk of the Court of Claims (see Senor v State 23 AD3d 851, 851 [3d Dept 2005]). Thus, claimant's motion will be denied.

Even if the motion were to be considered despite claimant's noncompliance with CPLR 3212 (b), it is well-established that a "party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; see Arias v State of New York, 195 Misc 2d 64, 65 [Ct Cl 2003]). The evidence must be submitted in admissible form and must establish the movant's right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp. 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, when a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the motion must be denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Tiano v Lane, 260 AD2d 908 [3d Dept 1999]).

The claim alleges that claimant sustained a facial puncture wound when he was assaulted by an unknown inmate in the recreation yard at Green Haven CF on December 28, 2014. The claim alleges that defendant is liable in negligence, and that the lack of walk-through metal detectors, the failure to periodically patrol the recreation yard and "useless" television cameras "added to the probability of [claimant's] assault" (Claim number 126417, 3). The claim alleges that "it is common knowledge that inmate's [sic] . . . have sustained injuries associated with metal weapons," and that the failure to install walk-through metal detectors "is a clear and decisive demonstration of 'deliberate indifference,' to the safety and security of the inmate population" (id.).

"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, 252-253 [2002]). The scope of the State's duty of care is to provide "reasonable protection against foreseeable risks of attack by other prisoners" (Sebastiano v State of New York, 112 AD2d 562, 564 [3d Dept 1985]; see Sanchez, 99 NY2d at 253; Flaherty v State of New York, 296 NY 342, 343 [1947]; Dizak v State of New York, 124 AD2d 329, 330 [3d Dept 1986]). In other words, there is no duty to protect an inmate from unforeseeable attacks because such a duty would improperly make the State an insurer of the safety of inmates (cf. Sanchez at 253). The foreseeability of an inmate-on-inmate assault rests upon a determination of what the State actually knew, as well as what it should have reasonably known, about the risk of an attack on claimant (see Sanchez, at 254; Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). An inmate-on-inmate assault may be found to have been foreseeable where defendant knew or reasonably should have known that the claimant was at risk of being attacked, that the assailant was prone to perpetrate attacks, or that, based upon the correction facility's prior experience and expertise, a particular class of inmates or a particular location within a facility presents a risk of attack (see Sanchez, at 254-255; Vasquez, at 1276; Littlejohn v State of New York, 218 AD2d 833 [3d Dept 1995]; Colon v State of New York, 209 AD2d 842, 843-844 [3d Dept 1994]; Evans v State of New York, 11 Misc 3d 1065[A], *6 [Ct Cl 2006]).

Claimant's motion is supported by a sworn notice of motion and six documentary and photographic exhibits that were generated after the alleged assault (see Sworn Notice of Motion; Appendix of Exhibits A-E), which claimant contends demonstrates deliberate indifference and negligence (Notice of Motion, Conclusion). Neither legal theory can be sustained without proof that the assault was reasonably foreseeable. All of the documentation submitted by claimant postdates the assault, and claimant's submission is bereft of any evidence that defendant knew or should have known prior to the assault the assault that claimant was at risk, that the assailant was prone to perpetrate assaults, or that the recreation yard was a location that presented a risk of attack. Thus, because claimant has not demonstrated prima facie that the attack was reasonably forseeable, he has not met his initial burden of demonstrating his entitlement to judgment as a matter of law, and his motion for summary judgment would be denied even if it had been supported by a copy of the pleadings.

Accordingly, it is

ORDERED, that claimant's motion number M-90310 is DENIED.

October 4, 2017

Saratoga Springs, New York


Judge of the Court of Claims

Papers considered:

(1) Claim number 126417, filed July 9, 2015;

(2) Verified Answer, filed August 13, 2015;

(3) Notice of Motion, sworn to April 20, 2017, with Appendix of Exhibits A-E;

(4) Affidavit of Service of William Porto, sworn to April 20, 2017.