New York State Court of Claims

New York State Court of Claims
REYES v. THE STATE OF NEW YORK, # 2018-040-029, Claim No. 126894, Motion No. M-90959

Synopsis

State's Motion for Summary Judgment regarding an inmate upon inmate assault Claim granted in part and denied in part.

Case information

UID: 2018-040-029
Claimant(s): SEAN REYES
Claimant short name: REYES
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126894
Motion number(s): M-90959
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: BRETT H. KLEIN, ESQ., PLLC
By: Brett H. Klein, Esq.
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Christina M. Calabrese, Esq., AAG
Third-party defendant's attorney:
Signature date: April 5, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, the State's Motion for summary judgment, pursuant to CPLR 3212, dismissing the Claim, is denied in part and granted in part(1) .

This Claim, which was filed in the office of the Clerk of the Court on October 20, 2015, alleges that, on or about October 20, 2013, at approximately 9:30 p.m., Claimant was on the running track in the prison yard at Ulster Correctional Facility (hereinafter, "Ulster"), when he was attacked by other inmates, who beat Claimant to unconsciousness. As a result of the attack, Claimant suffered serious physical injuries that included a fractured nose, requiring surgical repair, injuries to his eye, an orbital fracture, and a concussion (Claim, ¶¶ 6, 7).

Claimant asserts that Defendant failed to properly maintain and supervise the running track in a reasonably safe condition, and failed to properly supervise, monitor, and control the inmates in that area. It is alleged that, at the time of the attack, the running track was extremely dark, and was not adequately supervised by correction officers (hereinafter, "COs"). Moreover, it is alleged that the COs were not anywhere near the location before, during, and after the attack upon Claimant, including the guard station nearest to where the attack occurred, which should have been manned by a guard, but was abandoned at the time of the incident (Claim, ¶ 9). It is further alleged that Defendant knew or should have known, based in part on the number of past inmate-on-inmate attacks that have occurred in that area, that the running track was inherently dangerous because it lacked proper lighting and insofar as it was not properly supervised by COs (id.).

The Claim also alleges that, although Claimant requested immediate medical attention for his injuries, he was initially denied immediate necessary treatment (other than being seen briefly by a prison nurse), and, instead, was put in a special housing unit (hereinafter, "SHU") cell, where he was denied necessary medical treatment for his injuries until the afternoon of the following day (Claim, ¶ 10). The Claim asserts causes of action for negligence, gross negligence, medical indifference, negligent and/or intentional infliction of emotional distress, negligent supervision and/or retention of employees, negligent supervision of inmates, res ipsa loquitor, prima facie tort, and for the violation of Claimant's rights under Federal civil rights statutes and the United States Constitution with respect to the October 20, 2013 incident (id., ¶ 11).

The Claim further asserts that, on or about November 7, 2013, in the afternoon, at the Ulster SHU, Claimant was strip searched, at which time, he was verbally berated and physically abused by two COs, one of whom punched Claimant in the ribs, and the other threw him face first into a wall, thereby causing Claimant to sustain physical and emotional injuries. It is alleged this occurred in the presence of, and with the approval of, a supervisor (Claim, ¶¶ 12, 13).

As a result of his second incident, Claimant asserts causes of action for negligence, gross negligence, negligent and/or intentional infliction of emotional distress, negligent supervision and/or retention of employees, res ipsa loquitor, prima facie tort, as well as for the violation of Claimant's rights under Federal civil rights statutes and the United State Constitution (Claim, ¶ 14).

Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).

"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]; see Flaherty v State of New York, 296 NY 342, 346 [1947]; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). As in any other negligence action, "the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived" (Sanchez v State of New York, supra at 252; see Basso v Miller, 40 NY2d 233, 241 [1976]; Smith v County of Albany, 12 AD3d 912, 913 [3d Dept 2004]). Even though the "precise manner in which the harm occurred" may not have been foreseeable, liability attaches if it was "within the class of reasonably foreseeable hazards" to which the duty applies (Sanchez v State of New York, supra at 252; Rodriguez v City of New York, 38 AD3d 349, 352 [1st Dept 2007]). Moreover, it applies to those risks that were foreseeable, "not simply by actual notice but by actual or constructive notice - by what the 'State knew or had reason to know' " (Sanchez v State of New York, supra at 255, quoting dissenting op at 260 [emphasis in original]). In the instant Claim, it encompasses those risks that Defendant reasonably should have foreseen in the context of its operation of a prison and having custody of inmates forcibly surrounded by felons - many of them with a proven capacity for violence (Sanchez v State of New York, supra at 256).

At the same time, Defendant's duty to prisoners does not "mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate. The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez v State of New York, supra at 256; Elnandes v State of New York, 11 AD3d 828 [3d Dept 2004]).

The State has been found negligent in inmate-on-inmate assault claims where a claimant was able to establish that the attack was foreseeable because: (1) Defendant knew, or should have known, that the claimant was at risk of assault, yet failed to provide reasonable protection; (2) Defendant knew, or should have known, that the assailant was prone to perpetrate an attack, yet failed to take proper precautionary measures; or (3) Defendant failed to intervene or act when it knew, or should have known, that surrounding conditions were likely to engender or facilitate an attack (Smart v State of New York, UID No. 2007-029-053 [Ct Cl, Mignano, J., Dec. 21, 2007], affd 65 AD3d 1218 [2d Dept 2009]; Douglas v State of New York, UID No. 2007-028-012 [Ct Cl, Sise, P.J., May 17, 2007]; Shearin v State of New York, UID No. 2007-028-011 [Ct Cl, Sise, P.J., May 8, 2007]).

In support of its Motion, the State has submitted, inter alia, the Affirmation of Assistant Attorney General Christina M. Calabrese, Esq. (hereinafter, "Calabrese Affirmation"). Counsel asserts that Claimant had no known enemies at the time of the subject assault, which would have put Defendant on notice that Mr. Reyes was at risk from any specific inmate (Calabrese Affirmation, ¶ 7). As part of Exhibit D attached to counsel's affirmation, is a copy of a memorandum dated October 20, 2013, to Lieutenant (hereinafter, "Lt.") Ferrier from Sergeant T. Chamberlain referencing the incident at issue and stating that Claimant "claims he does not have any enemies at this facility and does not fear for his life" and has refused protective custody (see also, Ex. E [Affidavit of Department of Corrections and Community Supervision (hereinafter, "DOCCS") Lt. Thomas Chamberlain] and Ex. F [Affidavit of Lt. Ralph Riester]).

Defendant asserts that it did not know that Claimant was at risk of assault from the unnamed alleged assailants (Calabrese Affirmation, ¶ 7). However, Defendant did not submit any evidence, or establish that it did not know that the assailants were dangerous, or that the attack, otherwise, was not reasonably foreseeable. In addition, the Court notes that Defendant did not address the issues of inadequate lighting and inadequate supervision of the running track area by COs. Thus, the Court finds that Defendant has failed to establish its entitlement to judgment as a matter of law. Therefore, the portion of Defendant's Motion seeking summary judgment dismissing the causes of action alleging negligence, gross negligence, negligent infliction of emotional distress, negligent supervision and/or retention of employees, regarding the October 20, 2013 incident are denied.

With regard to the November 7, 2013 alleged assault of Claimant by several COs, Defendant asserts that an investigation was conducted by DOCCS and there was no evidence to corroborate any of Claimant's assertions (Calabrese Affirmation, ¶ 8 and Ex. E [Affidavit of Lt. Chamberlain] and Ex. F [Affidavit of Lt. Riester]).

As stated above, "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, supra at 853; see Alvarez v Prospect Hosp., supra at 324; Sillman v Twentieth Century-Fox Film Corp., supra at 404). The Court finds and concludes that Defendant has failed to submit sufficient evidence to eliminate the material question of fact regarding the November 7, 2013 incident; i.e., whether Claimant was assaulted by COs on that date. Claimant's Claim alleges he was assaulted by COs (Claim, ¶¶ 12, 13; see Affirmation of Brett H. Klein, Esq. (hereinafter, "Klein Affirmation"), ¶ 28 and Ex. 3 [Claimant's grievance dated November 18, 2013] and Ex. 7 [Claimant's grievance dated December 30, 2013]) and, not surprisingly, Defendant asserts there is no evidence to establish Claimant was assaulted (see Calabrese Affidavit, ¶ 8 and Exs. D & E). Thus, the portion of Defendant's Motion for summary judgment dismissing the causes of action alleging negligence, gross negligence, negligent infliction of emotional distress, and negligent supervision and/or retention of employees, regarding the November 7, 2013 incident also is denied.

The Court will now address the portion of the State's Motion for summary judgment to dismiss the remaining causes of action asserted by Claimant with respect to both the October 20 and November 7, 2013 incidents. Those causes of action are: res ipsa loquitor, prima facie tort, intentional infliction of emotional distress, medical indifference, and violation of Claimant's rights under the United States Constitution and Federal civil rights statutes. In opposition to the State's Motion, Claimant submitted the Klein Affirmation. On page 6 of the Klein Affirmation, following paragraph 20, is the heading "ARGUMENT" which includes the following footnote:

˛Claimant's allegations herein sound in negligence. To the extent the Verified Claim is read to assert causes of action for [res ipsa loquitor], [prima facie] tort, intentional infliction of emotional distress, and medical indifference, Claimant hereby clarifies that he is only asserting causes of action for negligence, including negligence, gross negligence, and negligent supervision.

As Claimant has not opposed this portion of the Motion, and, indeed, seems to be withdrawing these causes of action from the Claim, the Court grants the portion of the State's Motion for summary judgment dismissing the causes of action for res ipsa loquitor, prima facie tort, intentional infliction of emotional distress, and medical indifference, and those causes of action are dismissed.

Finally, the Court will address the portion of the State's Motion seeking summary judgment to dismiss the cause of action asserting violation of Claimant's rights under the United States Constitution and Federal civil rights statutes. No action may be maintained in this Court against the State for alleged Federal constitutional violations (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 [2004]; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 [1982]). To the extent that Claimant asserts Federal constitutional violations, his remedy lies elsewhere. Similarly, any cause of action Claimant asserts against the State pursuant to Federal civil rights statutes must be dismissed since the State is not a "person" under 42 USC § 1983 and the Court of Claims, therefore, lacks jurisdiction over such claims (Brown v State of New York, 89 NY2d 172, 185 [1996]; Blake v State of New York, 145 AD2d 1336, 1337 [3d Dept 2016], lv denied 29 NY3d 908 [2017]; Flemming v State of New York, 120 AD3d 848 [3d Dept 2014]; Shelton v New York State Liq. Auth., supra at 1148-1149; Walker v State of New York, UID No. 2017-015-242 [Ct Cl, Collins, J., June 21, 2017]).

Thus, the portion of the State's Motion seeking summary judgment dismissing the cause of action asserting violation of Claimant's rights under the United States Constitution and Federal civil rights statutes is granted and that cause of action is dismissed.

Therefore, based upon the foregoing, Defendant's Motion for summary judgment dismissing the Claim is granted in part and denied in part.

April 5, 2018

Albany, New York

CHRISTOPHER J. McCARTHY

Judge of the Court of Claims

The following papers were read and considered by the Court on Defendant's Motion for summary judgment, pursuant to CPLR 3212, dismissing the Claim:

Papers Numbered

Notice of Motion, Affirmation in Support,

and Exhibits Attached 1

Affirmation in Opposition and Exhibits

Attached 2

Filed Papers: Claim, Answer


1. While Defendant also moves to dismiss on the alternate ground of CPLR 3211 (a) (2), (7) and (8), the Court will only consider the portion of the motion for summary judgment as the Motion is made after issue has been joined (see, Oppenheimer v State of New York, 152 AD3d 1006, n 1 [3d Dept 2017]).