Padgett v. State

Order unanimously affirmed without costs. Memorandum: The Court of Claims correctly granted summary judgment in the State’s favor, dismissing this claim for damages suffered as the result of an unprovoked attack by a fellow inmate within a cellblock. The State is not an insurer of inmate safety; its duty is to exercise reasonable care to prevent foreseeable attacks by other inmates (see, Sebastiano v State of New York, 112 AD2d 562, 564; see also, Kemp v Waldron, 115 AD2d 869). Claimant failed to submit evidentiary material sufficient to raise a triable issue of fact on the issue of foreseeability or to controvert the State’s demonstra 915 tion that segregation of the assailant was not warranted under prison rules. Finally, the mere fact that a guard was not present within the cellblock at the time of the incident was insufficient, absent a showing that prison officials had notice of an especially dangerous situation, to support a finding that the State failed to exercise reasonable care (see, Mobley v State of New York, 1 AD2d 731, rearg denied 1 AD2d 928). The court also properly denied claimant’s motion to dismiss affirmative defenses on the ground that the motion was moot. (Appeal from order of Court of Claims, McCabe, J. —summary judgment.) Present—Callahan, J. P., Denman, Green, Pine and Balio, JJ.