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

13
CA 14-01350
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


ERIC ANDERSON, CLAIMANT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-APPELLANT.
(CLAIM NO. 112563.)


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

ERIC ANDERSON, CLAIMANT-RESPONDENT PRO SE.


     Appeal from a judgment of the Court of Claims (Stephen J. Lynch,
J.), entered November 13, 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: Defendant, State of New York (State), appeals from a
judgment awarding claimant money damages stemming from an incident in
which claimant, who was an inmate at a state correctional facility,
was assaulted by a fellow inmate. The Court of Claims determined that
the State was negligent in failing to provide adequate staffing for
the mess hall. The State appeals, and we now reverse and dismiss the
claim.

     “On appeal from a judgment following a bench trial, this Court
may ‘independently consider the probative weight of the evidence and
the inferences that may be drawn therefrom, and grant the judgment
that we deem the facts warrant’ ” (Blakesley v State of New York, 289
AD2d 979, 979, lv denied 98 NY2d 605; see Baba-Ali v State of New
York, 19 NY3d 627, 640). We conclude upon our review of the record
that the court’s verdict was not based on a fair interpretation of the
evidence (see generally Farace v State of New York, 266 AD2d 870,
870). The State’s duty to safeguard inmates “is limited to risks of
harm that are reasonably foreseeable” (Sanchez v State of New York, 99
NY2d 247, 253; see Melvin v State of New York, 101 AD3d 1654, 1654-
1655; Padgett v State of New York, 163 AD2d 914, 914, lv denied 76
NY2d 711), and we conclude that claimant failed to demonstrate that
the State did not provide adequate supervision to prevent a risk of
harm that was reasonably foreseeable (see generally Sanchez v State of
New York, 36 AD3d 1065, 1067, lv denied 8 NY3d 815; Harris v City of
                                 -2-                            13
                                                         CA 14-01350

New York, 28 AD3d 223, 223, lv denied 7 NY3d 704).

     Here, the evidence established that there was no history of
violence between the two inmates and no indication that the other
inmate posed a threat to claimant (see Melvin, 101 AD3d at 1655;
Vasquez v State of New York, 68 AD3d 1275, 1276). Claimant testified
that there were about 30 inmates and one correction officer in the
mess hall at the time of the incident. He presented evidence that the
inmate stabbed him with the handle of a plastic toothbrush that had
been sharpened to a point, and that the correction officer ordered
them to stop fighting and banged his baton on a table to call for
assistance. The State submitted evidence that inmates had to empty
their pockets and go through a metal detector before entering the mess
hall. The State further submitted evidence that it was appropriate to
have one correction officer supervising up to 40 inmates, and that the
correction officer’s response to the attack was appropriate.




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
