        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

25
CA 14-01349
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


DANIEL WILLIAMS, CLAIMANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)
(CLAIM NO. 114956.)


ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JEFFREY W. LANG OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DANIEL WILLIAMS, CLAIMANT-RESPONDENT PRO SE.


     Appeal from a judgment of the Court of Claims (Stephen J. Lynch,
J.), entered November 12, 2013. The judgment awarded the claimant
money damages as against defendant.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the claim is
dismissed.

     Memorandum: Claimant, an inmate at a state correctional
facility, commenced this action alleging that defendant, State of New
York (State), was negligent and thus was liable for injuries sustained
by claimant when he was assaulted by three fellow inmates. Following
a trial, the Court of Claims determined that the State was negligent
and awarded claimant $12,500 in damages, plus interest. The State
appeals.

     We reverse, inasmuch as we conclude that the verdict in favor of
claimant was not based on a fair interpretation of the evidence (see
generally Farace v State of New York, 266 AD2d 870, 870). It is well
settled that “[t]he 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, 256). The State owes a duty to inmates to protect them
from risks of which the State is actually aware as well as risks that
the State “should reasonably have foreseen in the circumstances
presented” (id.). Prior to the subject assault, claimant was involved
in an altercation with an apparent gang member at Attica Correctional
Facility (Attica). The gang member was not one of the subject
attackers, but claimant testified that the attackers were in the same
housing unit and the same “company” with that apparent gang member at
Attica. On the same day, during a bus ride to Southport Correctional
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                                                         CA 14-01349

Facility, the attackers brought up the earlier altercation with
claimant and claimant felt threatened to some extent, but he did not
alert any prison officials. Subsequently, claimant and the three
subject attackers were all placed in the same holding pen during a
stop at Wende Correctional Facility to change buses. Claimant was
then assaulted. There is no record evidence to establish that prison
officials were aware of a risk of harm to claimant posed by the three
Attica inmates and, similarly, there is no evidence that the State
should have foreseen the assault upon claimant (see Melvin v State of
New York, 101 AD3d 1654, 1654-1655; Vasquez v State of New York, 68
AD3d 1275, 1276-1277; Padgett v State of New York, 163 AD2d 914, 914-
915, lv denied 76 NY2d 711).




Entered:   February 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
