Opinion
May 22, 1967
Appeal from a judgment of the Court of Claims which dismissed, after trial, a claim for damages predicated on the alleged negligence of the State in failing to prevent an assault upon claimant, an inmate of Elmira Reformatory, by one Pomoles, a fellow inmate; the trial court finding that claimant failed to establish any negligence. The two inmates involved had been sentenced from New York City; and on the day before the occurrence complained of they had been transported therefrom to Elmira by train, being handcuffed together, and they, with other prisoners, being in the custody of officers who, according to claimant's testimony, stated to claimant that they were from Elmira Reformatory. On the train, Pomoles acted strangely, indicating that he expected to be electrocuted and stating that to prevent it he would kill "some one". The next day, in the course of routine admission procedures in the institution, claimant and Pomoles were for a time left unattended in the clinic area, near the open door of the barbershop, and during that period Pomoles slashed and wounded claimant with a double-edged razor blade. There was no proof that the officers who accompanied Pomoles from New York City to Elmira reported Pomoles' conduct upon the train or that the reformatory officials were otherwise apprised of anything about him that was out of the ordinary; and claimant's attempted identification of the officers as reformatory guards was vague and unsubstantiated, and the trial court was warranted in discrediting it, particularly so in view of the provisions of section 290 Correct. of the Correction Law, then (Nov. 28, 1956) requiring that prisoners such as these, when sentenced in the City of New York, be conveyed to the reformatory by the Commissioner of Correction of that city or his representative. The trial court was also justified (at least in the absence of proof of notice of Pomoles' alleged dangerous propensities) in finding that negligence on the part of the State was not to be inferred from Pomoles' possession of the double-edged razor blade, prisoners being permitted at that time to have blades of that nature. There was no evidence that any such blades were used or kept in the barbershop. Upon this record, Pomoles' assaultive act was not reasonably to be foreseen (see Flaherty v. State of New York, 296 N.Y. 342) and the Court of Claims correctly found that no cause of action had been established. Judgment affirmed, without costs. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.