New York State Court of Claims

New York State Court of Claims
SABUNCU v. THE STATE OF NEW YORK, # 2017-041-509, Claim No. 123615


Claim alleging that defendant failed to timely respond to an inmate-on-inmate assault is dismissed after trial where claimant failed to prove by a preponderance of the credible evidence that defendant responded to the assault in a negligently delayed manner.

Case information

UID: 2017-041-509
Claimant(s): JOHN SABUNCU
Claimant short name: SABUNCU
Footnote (claimant name) :
Footnote (defendant name) : The caption has been amended to reflect the proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123615
Motion number(s):
Cross-motion number(s):
Claimant's attorney: HELD & HINES LLP
By: James K. Hargrove, Esq.
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: G. Lawrence Dillon, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 14, 2017
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


John Sabuncu (claimant) was an incarcerated state prison inmate at Mid-State Correctional Facility (Mid-State), a medium security facility, in December 2012, when he was assaulted and injured by fellow inmate Al Nelson. Claimant and inmate Nelson were both residents of Dorm 4C at Mid-State, an open, dormitory-style area where 45-55 inmates lived communally. Claimant endured several injuries in the assault, including a broken eye socket, and has brought this claim seeking damages for those injuries.

Although the claim listed several theories of recovery and delineated seven causes of action, by pre-trial motion practice, the claim was thereafter specifically limited to the issue of whether defendant "failed to timely intervene to stop the ongoing assault and mitigate the injuries and damages inflicted on claimant by his fellow inmate."(2)

The substantive law underlying the claim is 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]).

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 (Matter of Blake v Selsky, 10 AD3d 774, 775 [3d Dept 2004]).

A bifurcated trial devoted exclusively to liability was conducted May 11, 2017. Four witnesses testified at trial, but the most relevant and significant witnesses were claimant and the corrections officer (CO) who first responded to the scene of claimant's assault, CO Scott Brenning.

Claimant testified that shortly after 1:00 a.m., on December 27, 2012, while he sat on his bed eating potato chips and composing a letter to a family member, inmate Nelson entered his room and, suddenly and without provocation, attacked him, beating him with closed fists, including punching him in the face, and then began choking him about the neck. The two engaged in hand to hand contact and at some point went to the ground.

During the assault, fearful for his life, claimant testified to screaming "at the top of my lungs"(3) and "yelling, yelling, yelling." According to claimant, a third inmate intervened and pulled inmate Nelson off of claimant. The basis of the claim is the assertion that CO Brenning arrived at the scene of the assault after an exceedingly lengthy delay and that upon arrival, was slow to intervene. Claimant testified to having observed CO Brenning asleep at his post earlier in the evening.

Claimant's and CO Brenning's description of CO Brenning's response to the incident, needless to say, wildly diverged. In his claim, claimant described the initial defendant response time to his attack as "approximate[ly] 10-15 minute[s]." At trial, claimant testified that, from the time of his screaming and yelling, between 8 to 10 minutes elapsed before a CO responded to the scene of the assault and that upon arrival, the CO was slow to physically react. Claimant further described his experience as follows:

1. The assault felt "like years;"

2. The assault felt "like hours went by;"

3. He was "scared" and "in fear;"

4. He "got dizzy;"

5. He was "coming in and out of consciousness;"

6. The event was "traumatic;" and,

7. His life "flashed before my eyes."

He also affirmed that there was no clock in his room, the scene of the assault, and that after CO Brenning arrived, three or four additional officers arrived to the scene within five minutes. He described CO Brenning's post as being 35-40 feet from the scene of his assault.

Corrections Officer Brenning, the overnight on-duty Dorm 4C officer that evening, described his post as a windowed office located 30 feet from claimant's room. He testified to hearing yells emanating from the living quarters area on the date in question. The door to his office was open. Upon hearing the yelling, he stood, called for officer assistance on his radio and responded to the scene. Arriving, he found claimant and inmate Nelson involved in an altercation, observed inmate Nelson with a closed fist, noted injuries to claimant's face and to inmate Nelson's hand, and observed claimant and Nelson yelling at each other. He ordered the men to "stop fighting," and at that, Nelson backed away. From having first heard the yelling, CO Brenning testified to having arrived at the scene in "a minute," and that "it could not have been as much as two minutes." His testimony, both at trial and during his pre-trial deposition, consistently described his arrival time to the scene as being between one and two minutes of having heard inmate(s) yelling.

Corrections Officer James Martingano, the next arriving officer, testified at trial without contradiction that he, stationed 20 feet from Dorm 4C, arrived at the scene of the incident within one minute of having been summoned by CO Brenning's radio call for officer assistance and that upon arriving, the two inmates had already been separated into their respective, and different, rooms. CO Brenning, consistent with that testimony, testified that CO Martingano was on scene within three minutes of CO Brenning having initially heard the commotion.

Given claimant's self-described circumstances and self-described condition during inmate Nelson's assault, it is fair to say that claimant was in no position to judge, with specificity or accuracy, the passage of time. The Court concludes that claimant's testimony regarding CO Brenning's response time to his assault is, at a minimum, erroneous. Moreover, it simply isn't logical to believe that with claimant screaming at the top of his lungs 30-40 feet from where CO Brenning was stationed, to say nothing about the noise and commotion such an assault would produce, that it took CO Brenning 8 to 10 minutes to respond. To believe that would require a conclusion that CO Brenning consciously and intentionally decided to not respond or to delay his response, no proof of which was offered at trial. Even were one to believe that CO Brenning had dozed off (a finding the Court has not made), there is little chance it would take 8 to 10 minutes for him to be roused by the described row taking place 30-40 feet away.

Finally, the Court credits CO Brenning's trial testimony that upon hearing the claimant's yells, he stood, called for officer assistance and responded to the scene of claimant's assault in one to two minutes time. The Court further credits CO Brenning's trial testimony that upon arriving to the incident, he ordered the two inmates to stop fighting and that in response to that order, inmate Nelson ceased fighting and backed away.

For all of the foregoing reasons, the claimant has failed to prove by a preponderance of the credible evidence that defendant responded to the scene of his assault and interceded to end his assault in a negligently delayed manner.

The claim is dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

August 14, 2017

Albany, New York


Judge of the Court of Claims

2. From the Court's Decision and Order (Motion No. M-87397) filed July 14, 2016.

3. All quotes hereafter attributed to trial testimony are either from the audio recording of the trial or from the Court's contemporaneously taken trial notes.