SERPA v. COUNTY OF NASSAU

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Supreme Court, Appellate Division, Second Department, New York.

Daniel SERPA, Respondent, v. COUNTY OF NASSAU, Appellant.

Decided: February 20, 2001

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN and HOWARD MILLER, JJ. Alfred Samenga, County Attorney, Mineola, N.Y., and Stanziale & Carpentier, LLP, Mineola, N.Y. (Henry Stanziale of counsel), for appellant (one brief filed).

In an action, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated July 5, 2000, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing the plaintiff's cause of action pursuant to 42 USC § 1983, and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

The plaintiff commenced this action against the County of Nassau, inter alia, to recover damages for personal injuries he suffered when he was allegedly raped while an inmate at the Nassau County Correctional Facility.

 The Supreme Court properly denied that branch of the County's motion which was for summary judgment dismissing the plaintiff's complaint insofar as it seeks to recover damages for the County's negligence.  “It is well established that correctional officials have a duty to use reasonable care to protect inmates from the foreseeable risks of harm, including risks of attack by other prisoners” (Caruso v. County of Suffolk, 234 A.D.2d 495, 652 N.Y.S.2d 58;  see, Blake v. State of New York, 259 A.D.2d 878, 686 N.Y.S.2d 219;  Colon v. State of New York, 209 A.D.2d 842, 620 N.Y.S.2d 1015).   In this case, triable issues of fact exist as to whether the County “failed to use adequate supervision to prevent that which was reasonably foreseeable” (Colon v. State of New York, supra, at 843, 620 N.Y.S.2d 1015;  see, Blake v. State of New York, supra).

 The Supreme Court, however, improperly denied that branch of the County's motion which was for summary judgment dismissing the plaintiff's complaint insofar as it alleged a violation of 42 USC § 1983, as there was no evidence that any alleged violation of the plaintiff's constitutional rights resulted from a County custom or policy (see, Monell v. Department of Social Servs. of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611;  Dwares v. City of New York, 985 F.2d 94;  Ricciuti v. New York City Transit Auth., 941 F.2d 119, 122).

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