Opinion
# 2014-032-108 Claim No. 108919 Motion No. M-84373
04-04-2014
SEBASTIAN v. THE STATE OF NEW YORK
Claimant's attorney: Gelman & Jones, LLP By: Katrina M. Jones, Esq. Defendant's attorney: Hon. Eric T. Schneiderman, NYS Attorney General By: Glenn C. King, Assistant Attorney General, Of Counsel
Synopsis Case information
UID: 2014-032-108 Claimant(s): BERNARD SEBASTIAN Claimant short name: SEBASTIAN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 108919 Motion number(s): M-84373 Cross-motion number(s): Judge: JUDITH A. HARD Gelman & Jones, LLP Claimant's attorney: By: Katrina M. Jones, Esq. Hon. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Glenn C. King, Assistant Attorney General, Of Counsel Third-party defendant's attorney: Signature date: April 4, 2014 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves this Court for an order granting him summary judgment. The claim alleges that defendant was negligent in failing to protect claimant, an inmate at Clinton Correctional Facility, from an assault by another inmate on September 8, 2002. Defendant opposes the motion on the basis that claimant has failed to establish his entitlement to judgment as a matter of law, but that even if he had, defendant has raised sufficient issues of fact warranting denial of the same. The Court agrees and denies claimant's motion for summary judgment.
FACTS
On September 8, 2002, claimant, a Jewish inmate, was incarcerated in the Assessment and Program and Preparation Unit (APPU), otherwise known as the Special Housing Unit (SHU) at Clinton Correctional Facility. At approximately 12:15 p.m. on said date, claimant was assaulted by Kenneth Green, a general population inmate. The attack occurred in the synagogue of Clinton Correctional Facility after Jewish religious services had concluded. No correction officers were present in the synagogue or stationed at either the front door or the back door. As a result of the attack, claimant sustained personal injuries, including the loss of his top front teeth, nerve damage, pain, swelling, bleeding and gum discoloration. The crux of the claim is that defendant was negligent in failing to protect claimant from the assault which he alleges was foreseeable.
In support of his motion for summary judgment, claimant annexes his own affidavit which states, in part, that he was attacked by inmate Green in the synagogue at Clinton Correctional Facility on September 8, 2002 and that no correction officers were stationed in the synagogue or at the doors of the synagogue. He also annexes the Affidavit of Gary Cohen, a fellow inmate who witnessed the assault. Inmate Cohen states that although a correction officer separately escorted the APPU inmates and general population inmates to the Jewish service on the subject date, the correction officer was not inside the synagogue. He further states that inmate Green had a history of having a hot temper and a violent nature, and that prior to September 8, 2002, several APPU inmates had written to the then Assistant Deputy Superintendent of APPU, Stanley Berg, requesting that inmate Green not be allowed to attend Jewish services because of his hot temper and violent nature, but that no precautions were taken by the correction officers to ensure the inmates' safety. On the date of the subject incident, no correction officers intervened in the argument and subsequent altercation between claimant and inmate Green. Claimant also attaches statements from three inmates, including inmate Cohen, that were taken shortly after the incident which identify inmate Kenneth Green as the aggressor and state that people do not want to attend services when he is present.
In support of claimant's position that defendant was aware that inmate Kenneth Green had a known violent history and that he had previously assaulted another inmate in the synagogue, such that it should have taken precautions which would have prevented the instant assault, claimant attaches inmate Green's disciplinary history. In addition, claimant attaches a letter from Rabbi Alec Friedmann to inmate Green, dated May 10, 2000, stating that inmate Green would not be called out for Jewish services until he provides documentation that confirms his Jewish status. Said letter indicates that inmate Green had previously exhibited a lack of respect for worship and decorum. Claimant also attaches a letter from inmate Stewart Hopkins to Rabbi Friedmann on May 29, 2001, stating that he has had a conflict with inmate Green in past years and would cease going to Jewish services if inmate Green was allowed to continue to go. However, a letter from Thomas G. Eagen, Director of the Inmate Grievance Program, to Rabbi Friedmann, dated June 7, 2001, indicates that there is no documentation to indicate that inmate Green is disruptive to services or that there is a security concern with him attending Jewish services.
LAW AND ANALYSIS
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function in a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (Barr v County of Albany, 50 NY2d 247 [1980]).
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). "Material" has been defined as "substantial; of consequence; important; going to the essence or the merits; relating to matter of substance, rather than form" (Wanger v Zeh, 45 Misc 2d 93, 96 [Sup Ct, Albany County 1965], citing Ballentine's Law Dictionary, affd 26 AD2d 729 [3d Dept 1966]). A moving party's failure to demonstrate that there are no material issues of fact requires denial of a summary judgment motion, regardless of the sufficiency of the opposing party's papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). However, once a moving party has demonstrated that there are no such material issues of fact, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez, 68 NY2d 320); Winegrad, 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence must be viewed in the light most favorable to the opponent of the motion, and that party should be given every favorable inference (McKinnon v Bell Sec., 268 AD2d 220 [1st Dept 2000]).
The State is required to use reasonable care to protect inmates from foreseeable risks of harm, including the risk of assault by other inmates (Mullamphy v State of New York, UID No. 2011-010-024 [Ct Cl, Ruderman, J., Sept. 20, 2011]). The Court of Appeals established in Sanchez v State of New York (99 NY2d 247, 256 [2002]) that the ". . .State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. . . .The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State."
To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act (Sanchez v State of New York, 288 AD2d 647, 648 [2001]). The mere fact that a correction officer is not present at the time and place of an assault does not rise to an inference of negligence absent a showing that the correctional facility officials had notice of a foreseeable dangerous situation (Padgett v State of New York, 163 AD2d 914 [4th Dept 1990], lv denied 76 NY2d 711 [1990]).
Claimant argues that he has met all three conditions laid out by Sanchez. With respect to the first condition, he argues that, as an inmate assigned to the APPU, he was known to be at risk and the State should have, but failed to provide proper supervision when they allowed inmates from the general population to attend the same Jewish services that he was attending. Claimant argues that the second condition has been met because inmate Green was known to be dangerous and had in fact assaulted another inmate at the Jewish services prior to the subject incident, but that the State, despite such notice, failed to have any correction officers present at the subject services or standing at the doors to the synagogue. Claimant argues that the third condition has been met because the State had notice of inmate Green's violent history and failed to protect claimant by excluding inmate Green from the Jewish services or stationing correction officers at the synagogue.
In opposition to claimant's motion, defendant submits the affidavit of Stephen J. Brown, the Deputy Superintendent for Security at Clinton Correctional Facility, who has been employed by the Department of Correctional and Community Services [sic] (DOCCS) for 33 years and has been the Deputy Superintendent for five years. Mr. Brown states that it is and was the policy of DOCCS not to station an officer within the synagogue for purposes of privacy and further, that DOCCS does not have "usual" places for correction officers to be posted because that would, in itself, pose a security risk (i.e. all inmates would have to do is avoid these areas in order to conduct whatever nefarious activities they chose). In addition, he states that all inmates, APPU and non-APPU, were screened prior to being placed together for Jewish services to ensure that there were not any security issues between any of them. He states that if any complaint, whether written or verbal, was made by any inmate, an investigation would have been done. Finally, Mr. Brown states that contrary to claimant's assertion that inmate Green was an unusually violent inmate, a review of inmate Green's disciplinary history reflects that he is no different than 90% of the other inmates housed at Clinton. Moreover, there was no indication that there was a problem between claimant and inmate Green prior to the assault on September 8, 2002.
The Court concludes that claimant has failed to establish the right to judgment as a matter of law. No proof was submitted by claimant, other than self serving or conclusory affidavits, to show that defendant's actions were not in accordance with rules and regulations. Claimant's motion states that upon information and belief correction officers were supposed to be at the front and/or back door during Jewish religious services, but does not provide any authority for the same. The superintendent of a correctional facility has the 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]). Moreover, as set forth above, the mere fact that a correction officer is not present at the time and place of an assault does not rise to an inference of negligence absent a showing that the correctional facility officials had notice of a foreseeable dangerous situation (Padgett, 163 AD2d at 915).
However, even if claimant had made a prima facie showing entitlement as a matter of law, defendant has raised material issues of fact regarding whether defendant was negligent in not having a correction officer stationed at the synagogue and/or in allowing APPU inmates to be at the same services as non-APPU inmates. There are also questions of fact regarding whether inmate Green was an unusually violent inmate, making the subject assault foreseeable.
Based upon the foregoing, claimant's motion for summary judgment (M-84373) is denied.
April 4, 2014
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion, dated November 6, 2013; Affirmation of Katrina M. Jones, Esq., affirmed on November 5, 2013, with Exhibits; and Claimant's Memorandum of Law in Support of His Motion for Summary Judgment.Papers Filed: Claim, filed February 17, 2004; and Verified Answer, filed March 31, 2004.
2. Affirmation in Opposition to Claimant's Motion for Summary Judgment, affirmed by Glenn C. King, AAG, on December 23, 2013.