| Brown v City of New York |
| 2012 NY Slip Op 03793 [95 AD3d 1051] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Naeem Brown, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart, William H.Ng, and Jane L. Gordon of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Flug, J.), dated May 4, 2011, which granted the defendants'motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
On April 6, 2007, at the Anna M. Kross Center at Riker's Island, the plaintiff allegedly wasinjured when another inmate assaulted him and broke his jaw. The plaintiff commenced thisaction to recover damages for personal injuries against the defendants, the City of New York andthe New York City Department of Corrections, on the ground that they breached their duty toprotect him from foreseeable assaults from other inmates. The defendants moved for summaryjudgment dismissing the complaint. The Supreme Court granted the defendants' motion, and theplaintiff appeals.
A municipality owes a duty to inmates in correctional facilities to safeguard them fromforeseeable assaults from other inmates (see Sanchez v State of New York, 99 NY2d247, 253 [2002]; Vasquez v State ofNew York, 68 AD3d 1275, 1275-1276 [2009]). Foreseeability of an inmate-on-inmateassault is not limited to situations in which the municipality had actual knowledge of a danger,but also includes situations in which the municipality had constructive notice of the danger(see Sanchez v State of New York, 99 NY2d at 255). In determining whether themunicipality had "reason to know" about a danger, its knowledge of the particular inmates isrelevant, but so are its knowledge of risks to a class of inmates, its expertise or prior experience,and its own policies and practices designed to address the risks (id. [internal quotationmarks omitted]).
Here, the defendants, as the parties seeking summary judgment, bore the burden ofestablishing that the assault on the plaintiff was not foreseeable (id. at 254-255; Smith v County of Albany, 12 AD3d912, 913 [2004]; Serpa v County of Nassau, 280 AD2d 596 [2001]; see generally Stukas v [*2]Streiter, 83 AD3d 18, 24-25 [2011]). The defendantsargued, inter alia, that the assault on the plaintiff was not foreseeable to them, given the plaintiff'sdeposition testimony that, in effect, it was not foreseeable to the plaintiff. A defendant's duty,however, is not measured by whether the assault was foreseeable to the plaintiff, but by whetherit was foreseeable to the defendant. Here, the defendants failed to submit any evidence to showthat they lacked knowledge of any danger presented by the assailant. Therefore, they failed toestablish their prima facie entitlement to judgment as a matter of law. A moving defendant'sfailure to carry its initial burden requires denial of the motion, without regard to the sufficiencyof the papers submitted in opposition (see Rodriguez v Tribeca 105, LLC, 93 AD3d 655 [2012]; Eum v Stephens, 93 AD3d 632[2012]). Accordingly, the Supreme Court should have denied the defendants' motion forsummary judgment dismissing the complaint (see Sanchez v State of New York, 99NY2d at 256). Skelos, J.P., Balkin, Leventhal and Austin, JJ., concur.