Defendant's motion to dismiss claim because it fails to adequately state the nature of the claim as required by Court of Claims Act 11 (b), and fails to state a cause of action, is granted.
|Claimant(s):||JOSE A. BELL|
|Claimant short name:||BELL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Christina Calabrese, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 24, 2018|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim pursuant to Court of Claims Act 11 (b) for lack of jurisdiction because it lacks the particularity required, and pursuant to CPLR 3211 (a) (7) because the claim fails to state a cause of action. Claimant has not appeared in opposition to the defendant's motion.
The claim alleges that the inmate-claimant was attacked at Clinton Correctional Facility by a hooded person with a "razor type weapon" at 1:50 a.m. on January 17, 2015 while claimant was sleeping. When claimant awoke after being attacked, the "perp jumped back and. . . stayed low to the ground running out of my cube." The "housing officer . . . then came out of his office and turned the house lights on."
Defendant asserts that claimant has failed to sufficiently set forth the nature of the claim as required by Court of Claims Act 11 (b), thus depriving the Court of jurisdiction.
Court of Claims Act 11 (b) provides that:
"The claim shall 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, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed."
A claim against the State is permissible only as a result of the State's waiver of sovereign immunity and the statutory requirements conditioning suit must therefore be strictly construed (Kolnacki v State of New York 8 NY3d 277, 280 ). The Kolnacki court noted that the requirements of section 11 (b) are "substantive conditions upon the State's waiver of sovereign immunity" (quoting Lepkowski v State of New York, 1 NY3d 201, 207 ) and that the failure to satisfy any of the conditions is a jurisdictional defect (Kolnacki, 8 NY3d at 280-281). The Kolnacki decision stresses that "nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki, 8 NY3d at 281).
The strict pleading requirements of Court of Claims Act 11 (b) were reiterated in Rivera v State of New York (52 AD3d 1075 [3d Dept 2008]):
"Statutory conditions placed on claims against defendant must be strictly construed, mandating a dismissal for lack of jurisdiction if the claim does not meet the substantive pleading requirements found in Court of Claims Act § 11 (b)."
The Rivera court, quoting Lepkowski (1 NY3d at 208), reminded that:
"The Court of Claims Act does not require [defendant] to ferret out or assemble information that section 11 (b) obligates the claimant to allege."
The claim appears to seek recovery from defendant for failing to prevent an assault on claimant by a fellow inmate though the claim never specifically alleges that basis of recovery.
The substantive law underlying a claim alleging failure to protect an inmate from assault by a fellow inmate 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 ). "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 ).
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 and § 18; 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]).
The claim alleges that the attack upon claimant was brief, sudden and unexpected and does not allege any facts tending to show that the sudden attack by an unknown assailant in a darkened dormitory in the middle of the night as the inmate-claimant slept was either reasonably foreseeable or preventable.
The claim fails to set forth any legal or factual basis for finding defendant liable for claimant's injuries even assuming the truth of the allegations in the claim.
Claimant has failed to allege any facts tending to show that defendant negligently failed to protect the inmate-claimant and the claim fails to comply with the substantive pleading requirements of section 11 (b) of the Court of Claims Act. Consequently, the Court lacks jurisdiction over the claim.
Additionally, the claim fails to state a cause of action for recovery based upon defendant allegedly failing to protect claimant from assault and must be dismissed on that basis as well. The claim does not allege that defendant knew or should have known of any specific foreseeable risk of harm to claimant.
The claim is dismissed.
September 24, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion to Dismiss, filed July 5, 2018;
2. Affirmation of Christina Calabrese, dated July 3, 2018, and attached exhibits.