         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1294
CA 11-02541
PRESENT: SCUDDER, P.J., CENTRA, VALENTINO, WHALEN, AND MARTOCHE, JJ.


CRAIG MELVIN, CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 107704.)


GREENE & REID, PLLC, SYRACUSE (EUGENE W. LANE OF COUNSEL), FOR
CLAIMANT-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Court of Claims (Nicholas V. Midey,
Jr., J.), entered August 31, 2011. The judgment dismissed the claim
after trial.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimant, an inmate at a state correctional facility
operated by defendant, State of New York (State), commenced this
action alleging that the State was negligent and thus was liable for
injuries he sustained when he was assaulted by a fellow inmate.
Following a nonjury trial on the issue of liability, the Court of
Claims determined that the State was not negligent and dismissed the
claim. Claimant now appeals, and we affirm.

      “The State’s duty to an incarcerated person encompasses
protection from the foreseeable risk of harm at the hands of other
prisoners. Because the State is not an insurer of an inmate’s safety,
it will be liable in negligence for an assault by another inmate only
upon a showing that it failed to exercise adequate care to prevent
that which was reasonably foreseeable” (Schittino v State of New York,
262 AD2d 824, 825, lv denied 94 NY2d 752; see Sanchez v State of New
York, 99 NY2d 247, 252-253; Newton v State of New York, 283 AD2d 992,
993).

     Here, the court found that it was not reasonably foreseeable that
a hotpot would be used to assault claimant. The court also found that
it was not reasonably foreseeable that the inmate assailant would
assault claimant inasmuch as the inmate assailant had not been cited
for any violent behavior for over three years and there was no history
of violence between the two inmates (cf. Blake v State of New York,
                                 -2-                          1294
                                                         CA 11-02541

259 AD2d 878, 879; Littlejohn v State of New York, 218 AD2d 833, 834-
835). “Where, as here, the court’s decision is based upon a fair
interpretation of the evidence, it will not be disturbed on appeal”
(Newton, 283 AD2d at 993). Thus, the claim was properly dismissed.




Entered:   December 21, 2012                   Frances E. Cafarell
                                               Clerk of the Court
