GRANT v. THE STATE OF NEW YORK, #2006-031-515, Claim No. 98192

Synopsis

Claimant failed to demonstrate that the State was negligent relating to an assault upon him by other inmates. However, Defendant negligently failed to provide non-emergent but necessary medical care for period of 20 months. Claimant awarded $3,500.00 for his medical neglect cause of action. Claimant is also awarded $232.68 for his lost property cause of action

Case Information
UID:

2006-031-515
Claimant(s):

STEPHEN GRANT
Claimant short name:

GRANT
Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

98192
Motion number(s):

Cross-motion number(s):

Judge:

RENÉE FORGENSI MINARIK
Claimant?s attorney:

STEPHEN GRANT, PRO SE
Defendant?s attorney:

HON. ELIOT SPITZER
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant?s attorney:

Signature date:

May 23, 2006
City:

Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

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Decision
Claimant, Stephen Grant, filed claim number 98192 on April 22, 1998. In his claim, Mr. Grant alleges causes of action for lost property, constitutional violations, exposure to environmental tobacco smoke, medical malpractice, medical neglect and the failure of Defendant to protect him from an assault by other inmates. The trial of this matter was commenced in 2002 and adjourned to allow Claimant the opportunity to secure expert testimony. I concluded the trial of this matter on September 14, 2005 at Wende Correctional Facility.
Specifically, Claimant seeks redress for a number of incidents that occurred at Gowanda Correctional Facility. Claimant alleges that he was assaulted on July 10, 1996, by members of a prison gang known as the ?five percenters.? He claims that, during the assault, his septum was deviated but that the State failed to diagnose this injury after the assault. Mr. Grant alleges that Defendant refused to x-ray him until July 19, 1996, nine days after the incident. Then, even though the x-ray demonstrated the deviated septum and the need for surgical repair, Defendant failed to provide the recommended corrective surgery until February 27, 1998, approximately 20 months after the incident. Mr. Grant alleges that, because of this long delay, his nose had to be re-broken before it could be properly set. According to Claimant, the delay also caused him to heal in a less than satisfactory manner and resulted in permanent disfigurement. The claim goes on to allege that Defendant was also responsible for the loss of Claimant?s personal property immediately after the assault while he was housed elsewhere. Finally, the claim alleges constitutional violations and deliberate indifference to Claimant?s well being and failure to protect him from exposure to secondhand smoke from January 1995 to present.
At the time of trial, Claimant failed to offer the testimony of an expert medical witness. This was despite the fact that the trial of this matter had been adjourned at Claimant?s request on numerous occasions, by several different judges over a period of several years. Each adjournment was granted to provide Claimant another opportunity to retain an expert witness. Although Claimant requested another adjournment on the date of trial, Defendant?s objections relating to fairness, prejudice to Defendant and the age of the case were well taken, and I denied Claimant?s request.
As Claimant was unable to offer any expert medical testimony, I dismissed his medical malpractice cause of action at the time of trial. I also dismissed Claimant?s cause of action relating to exposure to environmental tobacco smoke on the record at the time of trial. This left Claimant?s causes of action for lost property, negligence relating to the assault, medical neglect and constitutional violations.
Other than broad generalizations, Claimant offered no proof relating to how his constitutional rights were violated. However, to the extent that the claim sounds in alleged violations of the United States Constitution or federal civil rights, they are properly raised in federal court, not in the Court of Claims (Zagarella v State of New York, 149 AD2d 503; Ferrick v State of New York, 198 AD2d 822).
I note that Claimant has also stated, albeit only in general terms, that his New York State Constitutional rights were violated. As Judge Philip J. Patti stated in Zulu v State of New York (Ct Cl, May 21, 2001 [Claim Nos. 96973 and 96974, Motion Nos. M-63183 and M-63184], UID #2001-013-006),

?A cause of action in tort may sometimes arise under the New York State Constitution . . . But caution should be exercised in recognizing a tort claim based upon the violation of constitutional ?rights.? In comparison to the Federal Constitution, the State Constitution ?touch[es] on subjects and concerns with less attention to any hierarchy of values, and . . . concededly contains references to matters which could as well have been left to statutory articulation? (Board of Education, Levittown Union Free School District v Nyquist, 57 NY2d 27, 43 n.5, appeal dismissed 459 US 1138).

Although the Court of Appeals recognized a cause of action for constitutional torts in Brown v State of New York (89 NY2d 172), courts have consistently determined that a constitutional tort remedy will not be implied when adequate alternative remedies exist (Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814; Remley v State of New York, 174 Misc 2d 523). In this matter, Mr. Grant could have, and apparently did, avail himself of the inmate grievance process. He also could have commenced an Article 78 proceeding (Matter of Hakeem v Wong, 223 AD2d 765, lv denied 88 NY2d 802; 7 NYCRR 701.1 et seq.). While Claimant may not have been satisfied with the results of these alternative remedies, this fact alone does not create jurisdiction over such matters in this Court. Accordingly, Claimant?s causes of action for violations of his federal and state constitutional rights must be dismissed.
With regard to the cause of action for lost property, at the time of trial, Defendant offered and Claimant accepted on the record the sum of $232.68 in full settlement of that cause of action. With regard to his cause of action relating to Defendant?s failure to prevent the July 10, 1996 assault, the State is required to use reasonable care to protect the inmates of its correctional facilities from foreseeable risks of harm (Flaherty v State of New York, 296 NY 342), including the foreseeable risk of attack by other inmates (Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112 AD2d 562). The State is not, however, an insurer of the safety of its inmates (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711; Casella v State of New York, 121 AD2d 495), and negligence will not be inferred from the mere happening of an incident (Mochen v State of New York, 57 AD2d 719; Van Barneveld v State of New York, 35 AD2d 900). The standard of care is that of reasonable supervision (see Castiglione v State of New York, 25 AD2d 895), and factors to be considered include whether there was a history of animosity between a claimant and his attackers of which the State was or should have been aware (see Hull v State of New York, 105 AD2d 961; Wilson v State of New York, 36 AD2d 559; Hann v State of New York, 137 Misc 2d 605, 608-609).
In claims arising from inmate assaults, the central issue is whether the State had notice of the risk of harm and an opportunity to intervene in a way that would have prevented the assault, but failed to do so (Huertas v State of New York, 84 AD2d 650). In Sanchez v State of New York (99 NY2d 247), the Court of Appeals explained that the State can be liable if the assault upon an inmate was reasonably foreseeable and the State failed to take reasonable steps to prevent the assault.
I find that the record before me indicates that Defendant did not have notice of any potential violence between Claimant and his assailants. The assault was sudden and without warning, taking even Claimant by surprise. Neither Claimant nor Defendant had notice that a dangerous situation existed prior to the assault. Absent such notice, unremitting supervision was unnecessary (see Hirsh v State of New York, 8 NY2d 125; Padgett v State of New York, supra; Carlino v State of New York, 30 AD2d 987, 988).
Although Claimant alleges that Defendant had notice that he was in danger and refers to Exhibit 9 (a fight investigation form relating to the incident), this document merely indicates that one of Claimant?s assailants, inmate Jones, had complained to an officer that Claimant was too loud. Nothing relating to this communication should have put Defendant on notice that Claimant was in any physical danger. I find that Claimant has failed to demonstrate that the assault was reasonably foreseeable or that Defendant was negligent in failing to protect him from the unexpected and unprovoked attack. Accordingly, Claimant?s cause of action for negligence relating to the assault must be dismissed.
Claimant?s cause of action for medical neglect, however, is more problematic. Claimant has demonstrated that his septum was deviated at or about the time of the assault. Although Defendant has maintained that the medical records only demonstrate that the date of the injury was undetermined, Defendant has offered nothing which would bring Claimant?s testimony concerning the nature of the injury into doubt. I find, therefore, that Claimant?s nose was broken in the July 10, 1996 assault.
Defendant?s own records (Exhibit A) clearly indicate that Defendant was aware of Claimant?s condition and agreed that Claimant was in need of surgery to repair his deviated septum. Despite Defendant having this knowledge, Claimant was forced to wait for almost two years before he was given the corrective surgery that he required. Indeed, from the tenor of the Claimant?s eloquent presentation of his case, it appears to me that it was this delay more than any other single fact that led to Claimant?s filing this claim.
Claimant testified concerning the injuries to his nose, stating that during the delay he was unable to breathe well, that he had to give up running and other physical exercise, that his nose was often runny, that he had trouble sleeping and that he suffered emotional trauma because of the delay. Claimant testified that, although his sinus congestion and pain grew worse over the 20 months he was forced to wait, his treatment during that time consisted merely of Tylenol, Advil and a nasal spray. None of these items alleviated his symptoms. Claimant asserts that he then became depressed and unable to sleep.
I am keenly aware, however, of Defendant?s argument that Claimant?s injury was actually rather slight and that although surgery was recommended, it was by no means emergent. Dr. Christina Misa testified on Defendant?s behalf that, although Claimant did have a deviated septum, this was by no means a major injury and that it would have had only a mild impact on Claimant?s day-to-day life. The doctor also pointed out that Claimant suffered from hay fever and that this may have been the root cause of many of his symptoms. The doctor further testified that part of the reason for the delay was that, during this time, the contract for services with one or more outside hospitals had expired and only emergent surgeries were being performed. However, although I find that Claimant?s report of his injuries may have been somewhat exaggerated, I find that it was negligent (contract expirations notwithstanding) for Defendant to make Claimant wait almost two years for the surgery.
Accordingly, I award Claimant the sum of $3,500.00 plus appropriate interest for his cause of action for medical neglect, and for his cause of action for bailment, the sum of $232.68 plus interest from July 12, 1996 to January 12, 1997, then from April 22, 1998 to the date of this decision, and thereafter to the date of entry of judgment. Any and all motions on which the Court may have previously reserved decision are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.

May 23, 2006
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims