Opinion
# 2012-040-062 Claim No. 109727 Motion No. M-80953
07-25-2012
RAFAEL URENA v. THE STATE OF NEW YORK
Synopsis
State's motion to dismiss Claim asserting Claimant was assaulted by a fellow inmate granted and Claim dismissed. Case information
UID: 2012-040-062 Claimant(s): RAFAEL URENA Claimant short name: URENA Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 109727 Motion number(s): M-80953 Cross-motion number(s): Judge: Christopher J. McCarthy Azam & Hertz, LLP Claimant's attorney: By: Khalid M. Azam, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Joel L. Marmelstein, Esq., AAG Third-party defendant's attorney: Signature date: July 25, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Defendant's motion seeking summary judgment dismissing the Claim pursuant to CPLR 3212 is granted.
The Claim, which was filed with the Clerk of the Court on August 13, 2004, alleges that, on September 3, 2003 at approximately 10:35 p.m. in the R Dormitory Day Room at Oneida Correctional Facility located in Rome, New York (Oneida), Claimant was assaulted by Inmate [Carmelo] Garcia. The Claim further asserts that Claimant and several other inmates informed a Correction Officer (CO) of Garcia's threatening behavior approximately two hours before the attack and that Defendant was negligent in failing to prevent the assault.
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93, 94 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such [a] prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY 2d 320, supra at 324; see Winegrad v New York Univ. Med. Center, 64 NY2d 851, supra at 853).
In support of its motion, Defendant has submitted a portion of the transcript of Claimant's deposition testimony (Ex. D attached to Motion). At his deposition, Claimant provided additional facts regarding the incident with Inmate Garcia. Claimant stated that he was not acquainted with Garcia prior to his arrival at Oneida and that he did not have any contact with Garcia prior to September 1 or 2, 2003 (Ex. D, pp. 36, 54). On that evening, Claimant returned to his dormitory cubicle with food items he purchased at the commissary (id., p. 35). Garcia took "a whole bunch" of food items from off of Claimant's bed, advising Claimant that, if he wanted them back, "you're going to have to fight" and "I belong to a gang" (id., pp. 33, 35).
A day or two later, on September 3, 2003, Claimant prepared a written grievance relating to the incident with Garcia, which he placed in the dorm's grievance box at approximately 10:00 p.m. (id., p. 47). After placing the grievance in the box, he spoke to CO Kosina, explaining the theft of his food and that Claimant felt threatened by Garcia (id., p. 48). Claimant stated that CO Kosina told him that, if he (Urena) pursued the grievance, both Urena and Garcia would be placed in the Special Housing Unit (SHU) (id.). Mr. Urena stated CO Kosina advised him to go beat up Garcia, so Garcia does not steal from another inmate (id., pp. 45, 57).
Mr. Urena stated that he did not want to be placed in SHU so he asked CO Kosina to remove the grievance from the box (id., p. 56). The CO retrieved the grievance and returned it to Claimant, who destroyed it (id., pp. 47-48). Claimant stated that, although he felt threatened by Garcia, the CO and some of Claimant's friends were aware that his food had been stolen by Garcia, so "[Urena] thought [Garcia] would have used common sense and not come and attack me" (id., p. 56). Claimant then went back to his cube and laid down to "think things out" (id., p. 58). At approximately 10:30 p.m., Claimant exited his cube and proceeded to the recreation room, where Garcia was playing dominoes with some of Claimant's friends. Claimant approached the group, stood next to Garcia and said to him, "[w]here's my food" (id., p. 40). Garcia responded, "[y]ou want trouble?" (id.), stood up and began punching Claimant. Claimant stated that he fell to the floor and that CO Kosina responded (id., p. 42).
"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]; see Flaherty v State of New York, 296 NY 342, 346 [1947]; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). As in any other negligence action, "the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived" (Sanchez v State of New York, 99 NY2d 247, supra at 252; see Basso v Miller, 40 NY2d 233, 241 [1976]; Smith v County of Albany, 12 AD3d 912, 913 [3d Dept 2004]). Even though the "precise manner in which the harm occurred" may not have been foreseeable, liability attaches if it was "within the class of reasonably foreseeable hazards" to which the duty applies (Sanchez v State of New York, 99 NY2d 247, supra at 252; Rodriguez v City of New York, 38 AD3d 349, 352 [1st Dept 2007]). Moreover, it applies to those risks that were foreseeable, "not simply by actual notice but by actual or constructive notice - by what the 'State knew or had reason to know'" (Sanchez v State of New York, 99 NY2d 247, supra at 255, quoting dissenting op at 260 [emphasis in original]). In the instant Claim, it encompasses those risks that Defendant reasonably should have foreseen in the context of its operation of a prison and having custody of inmates forcibly surrounded by felons - many of them with a proven capacity for violence (Sanchez v State of New York, 99 NY2d 247, supra at 256).
At the same time, Defendant'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" (Sanchez v State of New York, 99 NY2d 247, supra at 256; Elnandes v State of New York, 11AD3d 828 [3d Dept 2004]).
The State has been found negligent in inmate-on-inmate assault claims where a claimant was able to establish that the attack was foreseeable because: (1) Defendant knew, or should have known, that the claimant was at risk of assault, yet failed to provide reasonable protection; (2) Defendant knew, or should have known, that the assailant was prone to perpetrate an attack, yet failed to take proper precautionary measures; or (3) Defendant failed to intervene or act when it knew, or should have known, that surrounding conditions were likely to engender or facilitate an attack (Smart v State of New York, UID No. 2007-029-053 [Ct Cl, Mignano, J., Dec. 21, 2007], affd 65 AD3d 1218 [2d Dept 2009]; Douglas v State of New York, UID No. 2007-028-012 [Ct Cl, Sise, P.J., May 17, 2007]; Shearin v State of New York, UID No. 2007-028-011 [Ct Cl, Sise, P.J., May 8, 2007]).
The Court has considered the affirmation submitted by Defense counsel, as well as the exhibits submitted, including the transcript of Claimant's deposition, and concludes that the submissions satisfy the prima facie showing required to warrant judgment as a matter of law if not rebutted by Claimant. The deposition testimony of Claimant establishes that: (1) Garcia took food items belonging to Claimant on September 1 or 2, 2003 and advised Claimant that, if he wanted them returned, Claimant would have to fight for them; (2) on September 3, 2003, a day or two later, Claimant prepared a grievance against Garcia relating to the incident and placed it in his housing unit's grievance box at approximately 10:00 p.m.; (3) Claimant then spoke with CO Kosina and advised the CO that he placed the grievance in the box; (4) CO Kosina advised Claimant that both he and Garcia would be placed in SHU if the grievance was received; (5) Claimant did not wish to be placed in SHU, so he asked the CO to remove the grievance from the box; (6) the CO removed the grievance and returned it to Claimant, who destroyed it; (7) Claimant returned to his bunk for approximately 15 minutes; (8) Claimant then went to the recreation room where Garcia was playing a game with several inmates; (9) Claimant asked Garcia where his food was in front of other inmates; (10) whereupon Garcia asked Claimant if he wanted trouble, stood up and punched Claimant.
The record does not establish that: (1) the State knew or had reason to know Claimant was at risk of being assaulted and failed to provide Claimant reasonable protection; (2) the State knew or should have known that Garcia was prone to perpetrate attacks and failed to take precautionary measures; or (3) the State failed to act when it knew or should have known that surrounding conditions were likely to facilitate an attack. In fact, the record establishes that the assault occurred because Claimant confronted Garcia about the missing food.
Given Defendant's prima facie showing, the burden then shifted and it was incumbent upon Claimant to submit evidentiary facts or materials sufficient to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Here, Claimant submitted an affidavit in opposition and his counsel submitted an affirmation in opposition to Defendant's motion. However, upon review of the documents in the light most favorable to Claimant, as the opponent of the motion, and giving him every favorable inference (see Lamarre v Rensselaer County Plaza Assoc., 303 AD2d 914 [3d Dept 2003]; Boyce v Vazquez, 249 AD2d 724, 726 [3d Dept 1998]), the Court concludes that Claimant has failed to offer any evidence in opposition to Defendant's prima facie showing for summary judgment and has failed to raise a triable issue of fact.
Therefore, as set forth above, Defendant's motion to dismiss the Claim is granted.
July 25, 2012
Albany, New York
Christopher J. McCarthy
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's motion for summary judgment:
Papers Numbered
Notice of Motion, Affirmation in Support
and Exhibits Attached 1
Affirmation of Claimant's Counsel
in Opposition, Affidavit of Claimant
in Opposition and Exhibits Attached 2
Reply Affidavit 3
Filed Papers: Claim, Answer