Opinion
1041 CA 17–01999
11-09-2018
Duval PITTS, Claimant–Respondent, v. STATE of New York, Defendant–Appellant. (Claim No. 120886.)
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (JEFFREY W. LANG OF COUNSEL), FOR DEFENDANT-APPELLANT. DOMINIC PELLEGRINO, ROCHESTER, FOR CLAIMANT-RESPONDENT.
BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (JEFFREY W. LANG OF COUNSEL), FOR DEFENDANT-APPELLANT.
DOMINIC PELLEGRINO, ROCHESTER, FOR CLAIMANT-RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Claimant, an inmate at a state correctional facility, commenced this negligence action seeking damages for injuries he sustained when he was assaulted by a fellow inmate during an afternoon recreation session. Following the liability portion of a bifurcated trial, the Court of Claims determined that defendant was negligent and was fully responsible for claimant's injuries. Defendant now appeals.
Contrary to defendant's contention, the court properly determined that defendant's failure to continuously post officers in the subject recreation yard was a proximate cause of claimant's injuries. At trial, claimant's expert testified that direct supervision, i.e., supervision without any physical barriers, serves as a deterrent against inmate assaults. Yet defendant employed a practice in which there was no direct supervision of inmates in the recreation yard for approximately 30 minutes each day during a "shift change" in the tower overlooking the yard. Also, certain prison personnel testified at trial that there was an increase in "incidents" in the yard during the shift change. In light of that testimony and the other evidence adduced at trial, we conclude that a fair interpretation of the evidence supports the court's determination that defendant's decision to remove the officers from the yard during the shift change was a proximate cause of claimant's injuries (see Cianchetti v. Burgio, 145 A.D.3d 1539, 1540–1541, 44 N.Y.S.3d 293 [4th Dept. 2016], lv denied 29 N.Y.3d 908, 2017 WL 2367333 [2017] ; Farace v. State of New York, 266 A.D.2d 870, 870–871, 698 N.Y.S.2d 376 [4th Dept. 1999] ; see generally Sanchez v. State of New York, 99 N.Y.2d 247, 252–255, 754 N.Y.S.2d 621, 784 N.E.2d 675 [2002] ).
Finally, we reject defendant's contention that the claim is barred by governmental function immunity. Defendant waived that affirmative defense inasmuch as defendant did not plead it in its amended answer (see CPLR 3018[b] ; see also Valdez v. City of New York, 18 N.Y.3d 69, 78, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011] ; Murchison v. State of New York, 97 A.D.3d 1014, 1017, 949 N.Y.S.2d 789 [3d Dept. 2012] ; Vasquez v. Figueroa, 262 A.D.2d 179, 180, 694 N.Y.S.2d 6 [1st Dept. 1999] ; see generally Centi v. McGillin, 155 A.D.3d 1493, 1495, 66 N.Y.S.3d 337 [3d Dept. 2017], lv dismissed 31 N.Y.3d 1144, 83 N.Y.S.3d 425, 108 N.E.3d 499 [2018] ; Griffith Energy, Inc. v. Evans, 85 A.D.3d 1564, 1566, 925 N.Y.S.2d 282 [4th Dept. 2011] ).