Plaintiff commenced this action seeking damages for personal injuries suffered as a result of an incident on August 28, 1990 when plaintiff, an inmate at Riker's Island, was slashed with a knife by another inmate who allegedly did not belong in the same area of the prison as plaintiff. After trial, the jury rendered a verdict finding that the City of New York was negligent and that its negligence was a substantial factor in causing plaintiff's injuries. The apportionment of fault was as follows: the City of New York 70% and plaintiff's assailant Rich Mickie 30%. The jury awarded plaintiff $500,000 for his past pain and suffering.

At the close of plaintiff's case, plaintiff moved for a directed verdict and defendant cross-moved for dismissal of plaintiff's claims. The court reserved decision on the motions. Defendant submitted a written memo in support of its cross motion on the following day. After the jury reached its verdict and was discharged, defendant renewed its cross motion to dismiss for failure to state a claim arguing that plaintiff failed to make out a prima facie case and requested time to supplement its memo of law to argue for a reduction in the dollar amount of the verdict. The court granted the application and set up a briefing schedule. Defendant now moves pursuant to CLR 4404 (a) for an order (1) staying the entry of judgment until 60 days after the decision on all post-trial motions, (2) setting aside the jury's verdict on liability as a matter of law, or, in the alternative, (3) pursuant to CLR 5501 (c) to set aside or reduce the damages award as not sustainable by the credible evidence. Plaintiff opposes the motion.

After oral argument and upon the papers submitted to the court, defendant's cross motion to dismiss plaintiff's claims made at the close of plaintiff's case is granted for the reasons that follow.

The State, or a municipality, "[h]aving assumed physical custody of inmates...owes a duty of care to safeguard inmates, even from attacks by fellow inmates." Sanchez v Sate of New York, 99 NY2d 247, 252 (2002) (citations omitted). A municipality's "duty to protect inmates is limited to risks of harm that are reasonably forseeable." id. at 253. Forseeability is defined by actual or constructive notice and the standard is what the municipality "knew-or-should-have-known." id. at 255. In other words, "[t]he mere occurrence of an inmate assault, without [*2]credible evidence that the assault was reasonably forseeable, cannot establish the negligence of the [municipality]." id. at 256. Moreover, the municipality's "duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the [municipality] an insurer of inmate safety." id. There will always exist some level of risk of unpreventable assault within a prison where the inmate population consists of persons with dangerous criminal propensities. id.

In the instant matter, plaintiff failed to establish a prima facie case of the City's negligence. Specifically, plaintiff failed to demonstrate the requirements of notice and forseeability. Plaintiff did not offer any testimony that the City knew or should have known he was at risk and needed reasonable protection; that the City knew or should have known that the inmate assailant was prone to such an assault; or that the City had notice, time and opportunity to intervene but failed to do so. See id.

At trial, plaintiff claimed to have knowledge of the alleged breakdown in prison procedures that allowed the attack to occur. However, plaintiff relied solely on his own self-serving testimony to establish the City's negligence. Plaintiff failed to call any witness from the Department of Corrections, including any officers on duty at the time of the incident, or any officials who could have testified about the Department's rules, regulations, policies and practices which existed at the time of the incident. Plaintiff did not offer any documentation to show that a policy, rule, regulation or procedure existed for such circumstances and that such policy, rule , procedure or regulation had been negligently violated by defendant. Thus, plaintiff offered no credible evidence of what the procedures were and if and how they were breached.During the trial, plaintiff also testified that the incident occurred in an instant. Plaintiff offered no testimony that he knew his assailant before the incident, that there was any prior history of encounters with the assailant, or that he had complained that he felt endangered within the facility. As plaintiff admitted that he had no training and knowledge of the Department of Corrections procedures, plaintiff's testimony consisted only of his own opinions as to how the inmate assailant reached the area where he was and what security checkpoints were allegedly breached on the day of the incident. Thus, plaintiff failed to present any credible evidence to show how or why the incident occurred. Further, plaintiff failed to proffer any credible evidence regarding the assaulting inmate or any belief or fear of any dangerous propensities of the assaulting inmate. Therefore, plaintiff failed to establish that the City had notice of a dangerous situation or that the incident that occurred was forseeable with respect to him. In addition, plaintiff presented no credible evidence that anything defendant did or failed to do was the proximate cause of the injuries he suffered from an instantaneous attack.

Accordingly, defendant's cross motion to dismiss the complaint is granted. Plaintiff's motion for a directed verdict and defendant's post-trial motion to set aside or reduce the verdict are denied as moot.

This constitutes the decision and order of the court.

___________________________LARRY S. SCHACHNER, J.C.C.

Dated: March 15, 2007