Opinion
July 13, 1990
Appeal from the Court of Claims, McCabe, J.
Present — Callahan, J.P., Denman, Green, Pine and Balio, JJ.
Order unanimously affirmed without costs. Memorandum: The Court of Claims correctly granted summary judgment in the State's favor, dismissing this claim for damages suffered as the result of an unprovoked attack by a fellow inmate within a cellblock. The State is not an insurer of inmate safety; its duty is to exercise reasonable care to prevent foreseeable attacks by other inmates (see, Sebastiano v. State of New York, 112 A.D.2d 562, 564; see also, Kemp v. Waldron, 115 A.D.2d 869). Claimant failed to submit evidentiary material sufficient to raise a triable issue of fact on the issue of foreseeability or to controvert the State's demonstration that segregation of the assailant was not warranted under prison rules. Finally, the mere fact that a guard was not present within the cellblock at the time of the incident was insufficient, absent a showing that prison officials had notice of an especially dangerous situation, to support a finding that the State failed to exercise reasonable care (see, Mobley v. State of New York, 1 A.D.2d 731, rearg denied 1 A.D.2d 928). The court also properly denied claimant's motion to dismiss affirmative defenses on the ground that the motion was moot.