Opinion
# 2016-041-037 Claim No. 123615 Motion No. M-87397
06-21-2016
JOHN SABUNCU v. THE STATE OF NEW YORK
HELD & HINES LLP By: James K. Hargrove, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: G. Lawrence Dillon, Esq. Assistant Attorney General
Synopsis
Defendant's motion for summary judgment dismissing claim based upon inmate-on-inmate assault is granted except to the extent there exists a triable issue of fact with respect to the claimant's specific allegations that defendant's correction officer failed to timely intervene to stop the ongoing assault and mitigate the injuries and damages inflicted on claimant by his fellow inmate.
Case information
| UID: | 2016-041-037 |
| Claimant(s): | JOHN SABUNCU |
| Claimant short name: | SABUNCU |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to state the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123615 |
| Motion number(s): | M-87397 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | HELD & HINES LLP By: James K. Hargrove, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: G. Lawrence Dillon, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 21, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for summary judgment dismissing the claim which alleges that defendant failed to exercise due diligence to protect claimant from an assault by a fellow inmate while claimant was incarcerated at Mid-State Correctional Facility (Mid-State). Claimant opposes the motion.
The claim alleges that on December 27, 2012, claimant was assaulted at Mid-State by a fellow inmate while the "assigned correction officer on duty was asleep and not supervising the housing area and prisoners thereat." The claim further alleges that "[a]t least one correction officer witnessed the subject assault but failed to intervene" and that the assault only ended when "another prisoner came to Claimant's rescue."
The claim asserts that prior to the assault, defendant knew, both actually and constructively, that claimant's assailant was a gang member with both a violent past and propensity yet still allowed claimant "to be in a perilous situation." It is further alleged that "[a]t no time during the approximate 10-15 minute attack did any correction officer take any action to intervene, mitigate, or stop [the assailant's] attack on the Claimant, despite witnessing same from only a few feet away."
The claim also alleges, among many other things and through multiple theories, that defendant failed to properly hire, train and supervise its employees, failed to implement appropriate operating policies and procedures to protect inmates and failed to provide claimant with timely and adequate medical care for the injuries he sustained in the subject assault.
The procedural and substantive law governing the Court's consideration of the defendant's summary judgment motion is clear.
As a matter of procedure, a "motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 31 AD3d 877 [3d Dept 2006]).
Summary judgment is "a drastic remedy" (Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732, 733 [3d Dept 1999]). It "is the procedural equivalent of a trial . . . and should be granted only when it has been established that there is no triable issue of material fact" (Harris v State of New York, 187 Misc 2d 512, 517 [Ct Cl 2001]; see Paulin v Needham, 28 AD3d 531 [2d Dept 2006]).
The Court "must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact" (Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).
The Court's role on a motion for summary judgment is issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Matter of Hannah UU, 300 AD2d 942, 943 [3d Dept 2002]; Schaufler v Mengel, Metzger, Barr & Co., 296 AD2d 742, 743 [3d Dept 2002]) and where a genuine issue of fact exists, the motion must be denied (Fleet Bank v Tiger Racquet Fitness and Exercise Ctr., 255 AD2d 793, 794 [3d Dept 1998]).
The substantive law underlying the claim is equally 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 [2002]). "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]).
In determining if the State provided reasonable care to protect an inmate from assault the court may consider whether the claimant had previous known encounters with his assailant or had listed his assailant on an "'enemies list' with the institution" (Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]). The court may also consider whether the assailant was "a known dangerous prisoner" (Auger v State of New York, 263 AD2d 929, 930 [3d Dept 1999]; see Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]). Further, the court may consider whether "claimant was a known assault risk" (Stanley v State of New York, 239 AD2d 700, 701 [3d Dept 1997]).
The State's potential liability for negligent supervision with respect to an inmate-on-inmate assault is not limited, however, to situations in which actual notice of a particular claimant's vulnerability or a particular assailant's violent propensities can be shown. The State is also charged with the duty of protecting an inmate from reasonably foreseeable risks of harm based upon "what the State reasonably should have known--for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez, 99 NY2d at 254 [emphasis in original]).
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 [1990]).
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[2] and § 18[2]; see Matter of Shabazz v Portuondo, 260 AD2d 733 [3d Dept 1999], lv denied 94 NY2d 756 [1999]). In general, courts should defer to prison authorities in matters of internal prison security (Matter of Blake v Selsky, 10 AD3d 774, 775 [3d Dept 2004]).
In support of its motion, defendant offers, in addition to the pleadings and bills of particulars, the deposition transcripts of claimant and a correction officer assigned to the area where the assault took place and who also investigated the assault, the Mid-State "Unusual Incident Report," claimant's disciplinary hearing transcript with respect to the incident and the assailant's disciplinary hearing records. While the motion was pending, defendant also produced for claimant's review the assailant's prior disciplinary history.
The record offered by defendant in support of its motion shows that claimant never requested protective custody or any other heightened protection before or after the assault, that claimant knew his assailant and had spoken with him without incident on many occasions in the two-month period before the assault, that claimant did not suspect his assailant might attack him, that he had not been threatened in any manner by his assailant prior to the assault and that he was unaware prior to the assault of any information indicating that his assailant was a danger to claimant or to other inmates.
Claimant acknowledged in his deposition testimony that he had testified to the sudden and unpredictable nature of the assault at an inmate disciplinary hearing held after the assault, stating that his assailant "looks at me and all of a sudden, wham, he hit me right in the face," adding that the actions of his assailant "took me by complete surprise, shock."
The correction officer assigned to the area where the assault took place and who also investigated the assault testified that he remembered the assault and that in the course of his investigation there was no evidence produced that would demonstrate that the sudden assault could have been predicted or prevented.
The Court finds that defendant's submissions, most significantly the sworn deposition and inmate disciplinary hearing testimony of the claimant, the deposition testimony of the correction officer assigned to the area where the assault took place and who also investigated the assault and the investigatory documents resulting from the incident show that the assault on claimant by his fellow inmate was sudden, unexpected and unforeseeable, and was not attributable to any act or omission of the defendant.
Defendant has satisfied its initial burden of proof on its summary judgment motion. "The burden thus shifted to [claimant] to demonstrate a material issue of fact" (Svoboda, 31 AD3d at 878).
Defendant objects to the Court's consideration of the affidavit of claimant and the affirmation and exhibits submitted by claimant's attorney in opposition to the defendant's summary judgment motion. Claimant observes that the submissions are untimely in that they were served only 1-2 days prior to the return date of the defendant's motion rather than 7 days prior to the return date, as required by CPLR 2214 and as set forth in defendant's notice of motion. The Court, in its discretion, will consider the purportedly late submissions, particularly in view of the offer by claimant's attorney to permit defendant as much time as it needed to submit reply papers, and in consideration of the "drastic" nature of a summary judgment disposition (Lebanon Val Landscaping, 258 AD2d at 733).
The claimant's affidavit states that a "corrections officer stood there for six minutes ordering inmate Nelson to stop beating me. He did nothing to help or intervene. At the end of ten to fifteen minutes, inmate Nelson stopped striking me because of the sole assistance of inmate Rice." Claimant further swears that he "screamed for help and was beaten by an inmate for ten to fifteen minutes. After the corrections officer finally arrived the officer did nothing for six minutes except tell prisoner Nelson to stop."
Claimant says that as a result of the attack he suffered "a blowout fracture of the right eye resulting in vision loss, loss of consciousness, scarring, post-traumatic stress disorder, as well as other injuries, both physical and psychological."
Viewing the evidence presented on the defendant's summary judgment motion most favorably to the party opposing the motion, as required in assessing a request for summary judgment, the Court finds that the evidence offered by claimant in opposition to summary judgment, raises a triable issue of fact with respect to the specific allegations that defendant failed to timely intervene to stop the assault and mitigate the injuries and damages inflicted on claimant.
Defendant's motion for summary judgment dismissing the claim is granted except to the extent there exists a triable issue of fact with respect to the claimant's specific allegations that defendant's correction officer failed to timely intervene to stop the ongoing assault and mitigate the injuries and damages inflicted on claimant by his fellow inmate.
The defendant's motion for summary judgment is granted in part and denied in part, as set forth above.
June 21, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims Papers considered: 1. Defendant's Notice of Motion for Summary Judgment, filed August 28, 2015; 2. Affirmation of G. Lawrence Dillon, dated August 26, 2015, and attached exhibits; 3. Affidavit in Opposition of John Sabuncu, sworn to April 22, 2016; 4. Affirmation in Opposition of James K. Hargrove, dated April 25, 2016, and attached exhibits. 5. Letter of G. Lawrence Dillon, dated March 9, 2016, with attached exhibits.