New York State Court of Claims

New York State Court of Claims
HERNANDEZ v. THE STATE OF NEW YORK, # 2017-041-070, Claim No. 119760, Motion No. M-90729


Defendant's motion for summary judgment dismissing claim based upon inmate-on-inmate assault is denied where issues of fact exists as to allegations that defendant's correction officer failed to provide proper supervision of the inmates who assaulted the claimant and failed to be at his post to timely intervene to stop the assault and mitigate the injuries and damages inflicted on claimant.

Case information

UID: 2017-041-070
Claimant short name: HERNANDEZ
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 119760
Motion number(s): M-90729
Cross-motion number(s):
Claimant's attorney: RUSSELL A. SCHINDLER, ESQ.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Thomas Trace, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 16, 2017
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves for summary judgment dismissing the claim which alleges that defendant negligently failed to protect claimant from an assault by two fellow inmates while claimant was incarcerated in protective custody at Oneida Correctional Facility (Oneida). Claimant opposes the motion.

In particular, claimant asserts in his pre-trial deposition that he had no problem with either assailant before the subject assault which took place in a "booth" in the Oneida protective custody unit dayroom while claimant was using the telephone. A fellow inmate (Brancato) asked claimant who was next in line to use the telephone. Claimant told Brancato who was next in line and Brancato said "[g]ive me the phone next." Claimant told Brancato that Brancato would have to wait for his turn and Brancato responded that "I'm using the phone next" and spit at claimant. A second fellow inmate (Molinaro) closed the dayroom door and Brancato and Molinaro assaulted claimant, who, at "the first opportunity," ran to the officer's station where he observed the desk officer and a nurse but did not see "Officer Ruth" who "was nowhere to be found" though "he's supposed to be in the dayroom, but he wasn't."

Claimant alleges in his bill of particulars, among other things, that defendant was negligent based upon its "failure to provide heightened security for the inmates in the protective custody unit; failure to provide the requisite officers in the [dayroom]; . . . failure to provide proper supervision of corrections officers and personnel at the facility; failure to provide proper supervision of inmates who assaulted the claimant, despite knowledge of their violent propensities; . . . failure of corrections officers to be at their post."

The procedural and substantive law governing the Court's consideration of the defendant's summary judgment motion is clear.

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]).

Summary judgment is "a drastic remedy" (Lebanon Valley Landscaping, Inc. v Town of Moriah, 258 AD2d 732, 733 [3d Dept 1999]). It "is the procedural equivalent of a trial and should be granted only when it has been established that there is no triable issue of material fact" (Harris v State of New York, 187 Misc 2d 512, 517 [Ct Cl 2001]; see Paulin v Needham, 28 AD3d 531 [2d Dept 2006]).

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]).

The Court's role on a motion for summary judgment is issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Matter of Hannah UU, 300 AD2d 942, 943 [3d Dept 2002]; Schaufler v Mengel, Metzger, Barr & Company, LLP, 296 AD2d 742, 743 [3d Dept 2002]) and where a genuine issue of fact exists, the motion must be denied (Fleet Bank v Tiger Racquet Fitness and Exercise Center, Inc., 255 AD2d 793, 794 [3d Dept 1998]).

The substantive law underlying the claim is equally clear:

"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 [2002]). "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's potential liability for negligent supervision with respect to an inmate-on-inmate assault is not limited, however, to situations in which actual notice of a particular claimant's vulnerability or a particular assailant's violent propensities can be shown. 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 [1990]).

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[2] and 18[2]; 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]).

Finally, with respect to the legal duty owed by defendant to an inmate in protective custody, the Court notes that in Priester v State of New York (2002 WL 1396036, 2002 NY Slip Op 50230[U], Ct Cl UID #2002-010-018), the court explained that placement of an inmate in protective custody does not "create a special duty owed to claimant. Claimant was treated according to prison procedures and in the same manner as other [protective custody] inmates. The [protective custody] inmates were segregated from other inmates, but not from each other and there was no basis for altering this procedure as it applied to claimant (see Schittino v State of New York, 262 AD2d 824 [3d Dept 1999])"

In support of its motion, defendant offers, in addition to the pleadings, bill of particulars and other documents, the deposition transcripts of claimant, the "desk officer" (Officer Slocum) assigned to the protective custody unit where the assault took place and "Officer Ruth."

The record offered by defendant in support of its motion shows that neither claimant nor defendant had cause to suspect that claimant would be suddenly attacked in the dayroom by Brancato and Molinaro. The record further shows that claimant had not been threatened in any manner by his assailants prior to the assault and neither claimant nor defendant were aware prior to the assault of any information indicating that claimant's assailants were a danger to claimant specifically or to inmates in the protective custody unit generally.

The Court finds that defendant's submissions provide prima facie evidence that the assault on claimant by his fellow inmates was sudden, unexpected and unforeseeable, and was not attributable to any act or omission of the defendant.

Defendant has satisfied its initial burden of proof on its summary judgment motion. "The burden thus shifted to [claimant] to demonstrate a material issue of fact" (Svoboda, 31 AD3d at 878).

Claimant argues that defendant was "on notice of a higher level of risk of assault" with respect to claimant because of claimant's alleged cooperation with defendant in investigations of inmates and correction officers. This argument is unavailing because, first, defendant had already recognized and responded to this purported "higher level of risk" by placing claimant in protective custody. Second, the alleged assault had nothing to do with claimant's alleged cooperation with defendant but was instead a result of defendant's verbal dispute with Brancato over telephone use. Finally, as set forth earlier, the placement of claimant in protective custody did not create a special or heightened duty of care owed to claimant by defendant with respect to other inmates also placed in protective custody (Priester v State of New York, 2002 WL 1396036, 2002 NY Slip Op 50230[U], Ct Cl UID #2002-010-018).

Claimant further argues that the desk officer on duty (Officer Slocum) testified at his deposition that two correction officers were assigned to the protective custody unit at the time of the assault. Officer Slocum further testified that he was at his assigned location "in the office" and the other officer (Officer Ruth) was "roving" although Officer Ruth would be "[m]ostly in the dayroom" and otherwise in the "hallway, and that's pretty much it. It's a very small place."

Claimant testified that Officer Ruth "was nowhere to be found" and that "he's supposed to be in the dayroom, but he wasn't."

Based upon this proof, claimant asserts that if Officer Ruth was at either of these posts, in the dayroom or in the hallway, he would have seen Molinaro close the dayroom door and could have prevented or mitigated the assault.

Viewing the evidence presented on the defendant's summary judgment motion most favorably to the party opposing the motion, as required in assessing a request for summary judgment, the Court finds that claimant raises a triable issue of fact with respect to the allegations that defendant's correction officer failed to provide proper supervision of the inmates who assaulted the claimant and failed to be at his post necessary to timely intervene to stop the assault and mitigate the injuries and damages inflicted on claimant.

Defendant's motion for summary judgment dismissing the claim is denied.

October 16, 2017

Albany, New York


Judge of the Court of Claims

Papers considered:

1. Defendant's Notice of Motion for Summary Judgment, filed June 28, 2017;

2. Affirmation of Thomas Trace, dated June 27, 2017, and attached exhibits;

3. Affirmation in Opposition of Russell A. Schindler, dated August 17, 2017.