Opinion
# 2017-044-583 Claim No. 128750 Motion No. M-90855
11-09-2017
RAYMOND RAMIREZ v. THE STATE OF NEW YORK
RAYMOND RAMIREZ, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General
Synopsis
Court denied inmate claimant's motion for summary judgment in claim for injuries incurred in inmate-on-inmate assault.
Case information
| UID: | 2017-044-583 |
| Claimant(s): | RAYMOND RAMIREZ |
| Claimant short name: | RAMIREZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128750 |
| Motion number(s): | M-90855 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | RAYMOND RAMIREZ, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 9, 2017 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover for personal injuries allegedly received when he was attacked by a fellow inmate while in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira). Defendant State of New York answered and asserted several affirmative defenses. Claimant now moves for summary judgment, or in the alternative for dismissal of all of the affirmative defenses. Defendant opposes the motion.
Claimant argues that defendant was negligent because of its lack of precautionary security measures. Specifically, claimant asserts that defendant's failure to make inmates pass through a metal detector before entering the recreation yard allowed his attacker to assault him with a cutting-type weapon.
Conversely, defendant contends that claimant has failed to establish that he was at risk of being attacked, that his assailant was prone to perpetrating an attack, or that the attack was foreseeable and defendant had an opportunity to intervene, but took no action. Defendant further argues that claimant has failed to set forth any policy or security protocol that would require the placement of a metal detector at the entrance to the yard, and to have all inmates pass through it.
Claimant, as the proponent of this summary judgment motion, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
In his claim, claimant alleges that on August 13, 2016, he was attacked by an unknown assailant in Elmira's recreation yard. He indicates that the assailant struck him with a sharp, metal object which cut the left side of his face and left him with a 2½-inch by 1/4-inch permanent scar. Claimant asserts that defendant is liable based upon its "lack of security precautionary measures in the recreation gym yard."
Claim, ¶ 7.
Claimant has also submitted an affidavit in support of the motion in which he reiterates most of the allegations of his claim. Claimant further states that due to the injury he received, he suffers severe pain when he shaves his face. He also indicates that he has pain in the area of the laceration when he yawns or opens his mouth too wide. Claimant asserts that he suffers from anxiety attacks and nightmares, and that he becomes extremely depressed when he thinks about the laceration or sees it in the mirror.
Claimant has attached a copy of the inmate misbehavior report issued to him on August 13, 2016. The misbehavior report charged claimant with fighting, violent conduct and disturbance, based upon a physical altercation with Inmate Russell James. In the misbehavior report, Correction Officer (CO) P. Hart noted that claimant was attempting "to ward off several slashing type motions," and then claimant exchanged closed-fist punches to James' head and torso. Hart stated that claimant suffered a laceration on the left side of his face above his lip, which seemed consistent with a cutting-type weapon. Hart indicated that there were approximately 126 inmates in the yard at the time of the incident.
Although claimant did not know his attacker's identity at the time, prison employees apprehended James at the time of the incident.
Affidavit of Raymond Ramirez, sworn to July 27, 2017, in Support of Motion, Exhibit F.
It is well-settled that the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Blake v State of New York, 259 AD2d 878 [3d Dept 1999]). Despite this obligation, however, the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence (Colon v State of New York, 209 AD2d 842 [3d Dept 1994]). In order to establish that the State is liable for such an assault, an inmate claimant must allege and ultimately prove that the State knew or should have known that there was a risk of harm to the claimant which was reasonably foreseeable and inadequately addressed (Sanchez v State of New York, 99 NY2d 247 [2002]; see also Flaherty v State of New York, 296 NY 342 [1947]). In other words, a claimant must prove one of the following: (1) that 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) that 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) that the State had ample notice and opportunity to intervene but did not act (Sanchez, 99 NY2d at 252).
[T]he State'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 (id. at 256).
Claimant has not set forth any evidence that he was at risk of being attacked by another inmate. Further, there is no evidence in the record that Inmate James had violent tendencies or that defendant knew or should have known of them. Claimant has also failed to set forth any evidence that defendant had notice that there would be an attack as well as an opportunity to intervene, but did not take any action. Moreover, claimant has failed to submit any policy or protocol pertaining to the use of metal detectors which would support his allegation that defendant's failure to utilize a metal detector at the time of his incident was in violation of accepted standards. Claimant's conclusory allegation that defendant has a duty to control all prisoners from smuggling weapons through out the facility and attacking other inmates is insufficient to establish defendant's liability as a matter of law. Because claimant has failed to meet his burden, his motion for summary judgment is denied, without regard to defendant's answering papers (Winegrad, 64 NY2d at 853).
In the alternative, claimant argues that all of defendant's eight affirmative defenses lack merit. CPLR 3211 (b) provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." The burden is on the moving party to establish that the defenses lack merit as a matter of law (Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]; Paladino v State of New York, UID No. 2005-036-102 [Ct Cl, Schweitzer, J., Sept. 15, 2005]). For the purposes of this motion, "all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof" (Grunder v Recckio, 138 AD2d 923 [4th Dept 1988]). Moreover, "[i]f there is doubt as to the availability of a defense, it should not be dismissed" (Pellegrino v Millard Fillmore Hosp., 140 AD2d 954, 955 [4th Dept 1988] [internal quotation marks and citation omitted]).
The first three affirmative defenses pertain to the manner of timeliness and service of the claim. Claimant argues that because DOCCS failed to timely and properly process his mail, defendant is responsible for the delay and therefore the defenses lack merit. Claimant indicates that he requested notary services on October 3, 2016, but DOCCS did not provide them until October 20, 2016. He states that after notarizing his signature, the notary public deposited the sealed envelope containing the claim (the First Mailed Claim) in the mail room that same day. Claimant asserts that he requested that the First Mailed Claim be mailed by certified mail, return receipt requested. However, when he did not receive notification from the facility that the First Mailed Claim was mailed in that manner, he sent a second copy of the claim (the Second Mailed Claim) by certified mail, return receipt requested. Claimant argues that if DOCCS had complied with his initial request for certified mail, return receipt requested, and promptly mailed the envelope on October 20, 2016, the claim would have been both filed and served in a timely, proper manner.
The Court notes that the content of the Second Mailed Claim is identical to the First Mailed Claim.
Court of Claims Act § 11 (a) provides that a copy of the claim shall be served personally or by certified mail, return receipt requested, upon the Attorney General within the time prescribed in Court of Claims Act § 10. In an action to recover damages for personal injuries caused by the unintentional (negligent) conduct of an officer or employee of the State, as in this case, a claim must be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim, unless a notice of intention to file a claim is served upon the Attorney General within 90 days after the accrual of such claim (Court of Claims Act § 10 [3]). Service of the claim by certified mail, return receipt requested, is not complete until the document is received in the Attorney General's Office (Court of Claims Act § 11 [a]).
In the first affirmative defense, defendant alleges that the First Mailed Claim was improperly served by regular mail. In support of this defense, defendant has attached a copy of the First Mailed Claim and the envelope addressed to the Attorney General's Office as part of Exhibit B to the opposition papers. The envelope contains postage of $0.42, clearly less than that required for certified mail, return receipt requested. Further, the envelope is completely devoid of any indication that it was sent certified mail, return receipt requested. Although there may be a question as to whether DOCCS is responsible for the improper mailing, the evidence on its face supports a reasonable inference that the First Mailed Claim was not properly served. Accordingly, the Court finds that the first affirmative defense does not lack merit as a matter of law.
In the second affirmative defense, defendant asserts that neither a notice of intention to file a claim nor a claim was served within 90 days of accrual. As set forth previously herein, the claim accrued on August 13, 2016, when claimant was attacked by Inmate James. Defendant has attached a copy of the Second Mailed Claim and the envelope in which it was received as Exhibit C to the opposition papers. The envelope contains postage of $7.09 and indicates that the claim was sent by certified mail, return receipt requested. However, the envelope was not received in the Attorney General's Office until November 21, 2016, 112 days after the claim's accrual. Accepting as true defendant's allegation that a notice of intention had not been served, the Second Mail Claim appears to be untimely on its face. Accordingly, the second affirmative defense is not without merit as a matter of law.
In the third affirmative defense, defendant states that because the First Mailed Claim was served on November 14, 2016 and the Second Mailed Claim was served on November 21, 2016, both are untimely as they had to have been served by November 11, 2016, 90 days after accrual. Defendant's contention is not entirely accurate. Although Friday, November 11, 2016 was the 90th day after accrual, it was Veteran's Day, a holiday (see General Construction Law § 24). Accordingly, the time in which claimant had to serve the notice of intention or to file and serve the claim was extended until the next business day, which was Monday, November 14, 2014 (see General Construction Law § 25-a [1]). Although the First Mailed Claim was served (albeit improperly) in a timely manner, the Second Mailed Claim was not timely served. Accordingly, the third affirmative defense does not lack merit as a matter of law, at least with respect to the Second Mailed Claim.
Defendant appropriately admits that this claim was timely filed on October 31, 2016.
Defendant's fourth affirmative defense alleges that the claim fails to state a cause of action. This defense has been held to be "harmless surplusage," and any motion to strike it "should be denied as unnecessary" (Pump v Anchor Motor Frgt., 138 AD2d 849, 850 [3d Dept 1988]; see Salerno v Leica, Inc., 258 AD2d 896 [4th Dept 1999]; Paladino, UID No. 2005-036-102 at 2-3). Accordingly, the Court will not dismiss this defense.
Defendant's fifth and sixth affirmative defenses are virtually identical and essentially assert that because defendant's actions were privileged as discretionary determinations made while its agents, employees, or officials were acting within the scope of their public duties, the State is immune from liability. "While the duty to safeguard inmates from foreseeable harm is not a discretionary one for which the defendant may be immune from liability, decisions regarding the allocation of prison resources for the safety and security of staff and inmates may be discretionary determinations which cannot be dictated by the edict of a court or the retrospective conclusions of [the factfinder]" (Reed v State of New York, UID No. 2013-015-420 [Ct Cl, Collins, J., Apr. 24, 2013] [internal citation and quotation marks omitted]; see also Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 452 [2011], cert denied sub nom. Ruiz v Port Auth. of New York & New Jersey, 568 US 817 [2012]; Brown v State of New York, UID No. 2012-015-536 [Ct Cl, Collins, J., Mar. 22, 2012] ). Claimant has alleged that defendant should have placed a metal detector at the entrance to the yard and required every inmate entering to pass through it. To the extent that the availability of the immunity defense may rest upon the allocation of prison resources such as the metal detector and additional personnel, the defenses should not be dismissed at this stage in the litigation (Pellegrino, 140 AD2d at 955).
Defendant's seventh and eighth affirmative defenses are that there was culpable conduct on the part of claimant and/or third parties for whom defendant is not responsible, respectively. Claimant is seeking damages for injuries he received when he engaged in a physical altercation with a fellow inmate. Accordingly, and at this early stage in the litigation, these two defenses are not without merit as a matter of law.
In conclusion, claimant has failed to meet his burden of establishing that he is entitled to judgment as a matter of law on his claim of negligence. Further, claimant has not established that any of the affirmative defenses cannot be maintained as a matter of law. Accordingly, claimant's motion for summary judgment, or in the alternative to dismiss the affirmative defenses, is denied in its entirety.
November 9, 2017
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion: 1) Notice of Motion filed August 3, 2017; Affidavit of Raymond Ramirez, sworn to July 27, 2017, and attached exhibits; Memorandum of Law dated July 27, 2017. 2) Affirmation in Opposition of Mark Sweeney, Assistant Attorney General, dated September 8, 2017, and attached exhibits. Filed Papers: Claim filed October 31, 2016; Verified Answer filed December 1, 2016.