DECISION This claim arises out of an incident that occurred on April 24, 2017, during claimant’s incarceration at Sing Sing Correctional Facility (Sing Sing). As claimant was walking with a group of other incarcerated persons from the yard to the housing block, claimant was assaulted from behind by an unidentified group of incarcerated persons who slashed the right side of claimant’s face from his lips to the back of his head and allegedly said “Blood up” (T:53-54).1 Claimant alleges that the State is liable for the assault because the State knew or should have known that claimant, as a self-identified member of the Crips gang, was at foreseeable risk of attack from a rival gang, such as the Bloods, and that the State breached its duty to provide reasonable protection against the foreseeable risk of attack to claimant. Claimant also argues that it is unrealistic to require a known gang member to advise the State if he was specifically threatened by anyone. Rather, claimant argues that notice to the State of claimant’s gang affiliation alone should be sufficient to put the State on notice of a foreseeable risk that claimant would be attacked (Claimant’s Post-Trial Memorandum, p 16). Thus, claimant maintains that the State’s failure to separate claimant, a member of the Crips gang, from the members of the Bloods gang was negligent and a proximate cause of the injuries that claimant sustained in the attack. Additionally, claimant argues that the State failed to have an adequate number of officers posted on the night of the assault and that Correction Officer K. Greene, who was posted in the area of the assault, failed to either intervene or take any action to stop the assault. The State argues that it did not breach its duty to provide reasonable protection to claimant against a foreseeable risk of attack and that, absent claimant’s identification to the State of any known enemies or that he was in apprehension of being attacked, claimant’s gang affiliation alone does not put the State on notice that claimant was particularly at risk of being attacked. Additionally, the State does not recognize the existence of gang membership as a basis for separating incarcerated persons without either an identified apprehension of attack, a request for protective custody or the identification of a gang member as an enemy. The State also argues that it was not negligent in the number of officers posted at the time of the assault or based upon the conduct of Officer Greene at the time of the assault. The trial of the claim was bifurcated and this decision addresses only the issue of liability. Claimant’s case consists of his trial testimony and Claimant’s Exhibits 1 through 6: Watch Commander Logbook Entries; Unusual Incident Report dated April 29, 2017; To/From Memorandum dated April 24, 2017 to Lt. B. Bodge from Sgt. T. Brooks; To/From Memorandum dated April 24, 2017 to Sgt. P. Claudio from C.O. K. Greene; To/From Memorandum dated April 24, 2017 to Sgt. P. Claudio from C.O. K. Greene; Accident/Injury Investigation Report dated April 24, 2017. Claimant testified that the tattoo on his left arm that says Crips signified his affiliation with the Crips gang (T:21). Claimant had a gang affiliation when he was housed at Rikers Island Correctional Facility (Rikers) in July of 2015 for approximately a year and a half (T: 20-21). During that time period at Rikers, claimant was never housed in protective custody or involuntary protective custody (T:21-22). In February of 2017, claimant was in State custody and housed at Downstate Correctional Facility (Downstate) for a month and a half (T:22). Upon entry to the housing unit at Downstate, claimant was asked whether he had a gang affiliation (T:22). Claimant indicated that he was known as a Crip (T:23). Claimant also indicated his gang affiliation to his guidance counselor and the counselor indicated that it was noted in claimant’s record (T: 24). In mid-March, claimant was transferred to Sing Sing where, upon intake, he reported his gang affiliation to a sergeant and then to a housing-area sergeant (T:24-26). On cross-examination, claimant was confronted with his deposition testimony wherein he testified that he was asked upon his admission to Downstate if he had any enemies and that he responded that there were none that he was aware of but that he was a member of the Crips gang and that information also followed him from Rikers (T:45-46). Claimant did not give any names of enemies nor did he indicate that he felt threatened or had any problems with anyone (id.). When claimant was transferred to Sing Sing, he was again asked the same questions and gave the same responses (T:46-47). He conceded on cross-examination that he did not tell any officer or anyone at Sing Sing that he felt threatened prior to the incident (T:49-50, 55). He also testified that he had no issues with anyone in the yard prior to the assault (T:51). Prior to the assault, claimant did not request protective custody, which he knew was available to him (T:55). Claimant remained housed in the reception area of Sing Sing for two weeks, during which time he went to the yard and the bathhouse at every available opportunity (T:26). Thereafter, claimant was transferred to A block, where he was housed for approximately one month prior to the incident on April 24, 2017 (T:27-28). During that time, claimant went to the yard two to three times a day (T:28). The distance from A block to the yard is a long walk that proceeded down a corridor and beyond the B block to gain access to the outdoors. Once outside, the route proceeded downhill and over a bridge and train tracks, beyond the school, to the gated yard. Claimant walked the route daily within a group of eight to ten incarcerated persons (T:29). When asked about the number of officers supervising the incarcerated persons’ route, claimant replied “sometimes there’s officers in the walkways, sometimes there’s no officers in the walkway [sic]” (T:30). He then stated that generally there are four to six officers stationed on the walkway to return back to A block from the yard and that officers were always there (T:30). Claimant further stated that there was an officer at the corridor entrance, an officer at the middle of the corridor, an officer at the halfway point before the bridge, an officer at the beginning of the bridge, an officer on the other side of the bridge, and an officer on either side of the yard gate (id.). On April 24, 2017, between 8:30 p.m. and 9:00 p.m., claimant was in the yard when he heard through the walkie-talkies of two officers that there was a fight in another yard which resulted in a delay of the incarcerated persons in claimant’s yard proceeding back to their housing units. A few minutes after 9:00 p.m., claimant and the other incarcerated persons lined up to exit the yard. According to claimant, they usually proceeded out of the yard in groups of eight to ten (T:29). That night, claimant was in a group of eight (T:51, 59). They proceeded out of the yard, over the bridge, and up the hill. There were no officers along the walkway and it was dark. Claimant stated that, on a few previous occasions, there had been officers along the walkway. Claimant testified that Officer Greene was posted at the south gate corridor at the end of the walkway, at a distance of six to seven feet from claimant, when the assault occurred (T:50-51, 64). Claimant suddenly felt “a whole bunch of hands” grab him from behind and then a sharp object cut him on the right side of his face from his lips to the back of his head (T:38, 61). The group said, “Blood up,” which claimant knew to be a reference from a rival gang known as the Bloods (T:53-54, 61, 66). However, on cross-examination claimant conceded that anyone could say “Blood up” without actually being a member of the Bloods gang (T:54). The group then walked away quickly through the south gate to the housing block. Claimant’s attackers were never identified or apprehended (T:60). Claimant testified that the attack occurred within seconds (T:50-51, 64). On cross-examination, claimant testified that his recollection as to the duration of the incident was better at the time of his deposition when he had testified that the time that had elapsed from when he was grabbed to when he was slashed was “a couple of seconds…less than 5 seconds” (T:51-53). Claimant did not see nor know the identity of his attackers. However, claimant stated that his attackers were within the group of incarcerated persons that claimant had been walking with from the yard (T:53, 60). Claimant testified that he saw the group behind him, but he did not know who from the group had committed the assault (T:53). On cross-examination, claimant was confronted with his deposition testimony that he did not see anyone who had attacked him because “it was too dark” (T:54). After the attack, claimant was bleeding heavily and he covered his wound with his hat as he approached Officer Greene. Claimant was stopped by Officer Greene and a call was made for medical attention. Claimant was then taken to the infirmary. The memorandum of Officer Greene to Sergeant Claudio dated April 24, 2017 is one paragraph which provides: “[s]ir, on the above date at approx. 9:15 p, I was on post at the south corridor gate monitoring the HBA yard go back. I observed [claimant] approaching my gate holding his hat over the right side of his face. I ordered him to remove his hat. His face was cut from his ear to the front of his mouth. I immediately notified Sgt. Brooks who had [claimant] escorted to medical by van. [Claimant] was on the first yard run leaving the yard” (Claimant’s Exs. 4,5). The memorandum from Sgt. T. Brooks to Lt. B. Bodge, dated April 24, 2017, provides in pertinent part: “[o]n the above date at approximately 9:15p Officer K. Greene observed and reported that [claimant] had been cut on his face. She was stationed at the south corridor gate observing and controlling the HBA yard go back, [Claimant] was on the first yard run. I then had [claimant] escorted to the facility clinic via inside bus…. I ordered that the yard run be held at HB5 gates. I summoned for additional staff to report to that area. Upon your direction, I then had all [incarcerated persons] on the run scanned at the B.O.S.S. chair, walk thru [sic] metal detector, pat frisked and upper body checks were performed. No contraband was recovered, no suspect identified…. Upon my interview [claimant] refused to identify any perpetrator and refused to acknowledge any known enemy/enemies or reason he was assaulted. Stated he was cut from behind on the roadway. The roadway was inspected, no weapon was recovered…. Protective custody refusal signed and custody recommendation submitted” (Claimant’s Ex. 3). The Unusual Incident Report dated April 29, 2017 provides a one-paragraph description of the incident as follows: “WHILE MONITORING THE HBA YARD GO BACK FROM THE SOUTH CORRIDOR GATE, OFFICER K. GREENE OBSERVED [CLAIMANT] ENTER THE CORRIDOR HOLDING HIS HAT OVER HIS FACE. OFFICER GREENE ORDERED [CLAIMANT] TO REMOVE HIS HAT AND SHE OBSERVED HE HAD A LACERATION ON HIS FACE” (Claimant’s Ex. 2). Thereafter, claimant was charged with and found guilty of violating the facility rule of bringing gang activities to the facility and for being a member of the Crips gang. Claimant pled guilty to not reporting his injury (T:54-55, 59). On redirect examination, claimant stated that he concealed his wound with his hat to stop the bleeding (T:58-59). Claimant rested at the conclusion of his testimony. The State moved to dismiss the claim for failure to make out a prima facie case of negligence. Specifically, the State argued that, prior to the incident, the State had no notice that claimant had any enemies or felt threatened by anyone and the attack upon claimant was sudden and unexpected. The State argued that while the assault occurred in the presence of an officer, the officer did not have time to prevent the assault (T:67). The State also argued that it was beyond the parameters of the claim to assert that the basis of negligence was an insufficient number of officers posted in the area. Claimant opposed the motion and argued that the State was negligent in its lack of security and its failure to prevent the assault upon claimant. Specifically, claimant noted that claimant had testified at trial, without objection, that on the night in issue there were no officers posted on the walkway leading to the corridor and in the past there had been officers posted in that area. Claimant argued that the only officer posted in the area on the night in issue was Officer Greene, who was posted at the end of the route to the housing units. The Court reserved decision on the motion. The State’s case consists of the trial testimony of Sergeant T. Brooks and the State’s Exhibits B and C: Misbehavior Report dated April 24, 2017 issued to claimant; Claimant’s Refusal of Admission to Protective Custody dated April 25, 2017. Officer K. Greene did not testify at trial; however the To/From Memorandum dated April 24, 2017 to Sgt. P. Claudio from C.O. K. Greene was received in evidence as Claimant’s Exhibits 4 and 5. Additionally, the Misbehavior Report prepared by Officer Greene on the date of the incident charging claimant with a violation of the Failure to Report Injury was received in evidence as State’s Exhibit B. The Misbehavior Report sets forth a one paragraph description of the incident as follows: “[o]n the above date and approximate time, [claimant] was returning from the HBA run. He approached my gate hiding his face from view wit[h] his hat. When he was ordered to remove his hat I saw that his face was cut. Sergeant was notified and [claimant] was taken to hospital for treatment” (State’s Ex. B). Sergeant T. Brooks testified that he has been employed by the New York State Department of Corrections and Community Supervision and assigned to Sing Sing for 24 years. He has been the 5 Building Housing sergeant for 10 years and was working on the night in issue and prepared a memorandum regarding the incident (Claimant’s Ex. 3). According to Sergeant Brooks, approximately twenty minutes prior to claimant’s assault, there was an assault that occurred in another location which had to be resolved before any movement could resume and this delayed claimant’s movement from the yard to the housing units (T:77-78, 86). Sergeant Brooks testified that the lighting conditions on the walkway that claimant traversed consisted of posted lights along the route and there was no indication that the lighting had failed or was malfunctioning on the night of claimant’s assault (T:78, 80). Sergeant Brooks described the walkway as illuminated by lights on the outside wall, on the school building, on the chapel, and the walls always have a spotlight (T:87). Sergeant Brooks testified that there were four officers posted that night, which was customary, and that the officers were posted along the route at a distance of approximately 100 feet between each officer (T:77, 80, 86-88). Sergeant Brooks was posted in the area that evening because one of the officers had been moved from an assigned post to respond to the prior assault; therefore Brooks moved to cover that officer’s post and all four posts were covered (T:90). According to Sergeant Brooks, the incarcerated persons usually proceeded from the yard to the housing units in groups of 20, but due to the assault that occurred prior to claimant’s assault, the group size was reduced to 10 (T:88). Sergeant Brooks testified that he was posted at a distance of approximately 100 feet from Officer Greene and within earshot (T:79). Officer Greene verbally reported to Sergeant Brooks that claimant had been injured and tried to pass by while concealing his injury (T:77). The memorandum prepared by Sergeant Brooks stated that Officer Greene was stationed at the south corridor gate and had observed and reported that claimant had been slashed (Claimant’s Ex. 3). None of the officers saw who attacked claimant and claimant refused to identify his assailants (T:76, 89; Claimant’s Ex. 3). Sergeant Brooks ordered that the incarcerated persons be held at the gate and additional staff were summoned to scan the incarcerated persons with a metal detector and perform pat frisks (Claimant’s Ex. 3). No contraband was recovered and no suspect was identified (id.). Claimant “refused to identify any perpetrator and refused to acknowledge any known enemy/enemies or reason he was assaulted” (id.). The route that claimant traversed was inspected and no weapon was recovered (id.). Claimant refused protective custody after the incident (id.; State’s Ex. C). Sergeant Brooks was asked, “[w]hat is Sing Sing Correctional Facility’s policy if an [incarcerated person] acknowledges he’s affiliated with a gang, but does not give any specifics as to any individuals he may feel threatened by?” (T:78). Sergeant Brooks replied, “[t]he Department doesn’t recognize gangs, so there wouldn’t be any special accommodations or something just for being a gang member” (T:78-79). The State rested without calling the witness that was scheduled for the following day (T:91). The State then renewed its motion to dismiss the claim. Claimant opposed the motion and argued that there was a question of fact as to whether there were four officers posted as testified to by Sergeant Brooks or whether there was only one officer posted as testified to by claimant. Thus, claimant argued that there remains an issue for the Court to resolve as to whether there was sufficient security at the time of the assault upon claimant (T:92). The Court reserved decision on the motion and the trial concluded. The parties were directed to simultaneously submit a post-trial memorandum to the Court after the trial was transcribed. Claimant’s post-trial memorandum raised two issues that were not raised at trial and were raised for the first time in claimant’s post-trial memorandum. Accordingly, the Court afforded the State the opportunity to submit a reply memorandum addressing those issues and the Court afforded claimant the opportunity to submit a surreply memorandum. The first issue to be addressed is claimant’s request in his post-trial memorandum that the Court draw an adverse inference from the State’s failure to either call Officer Greene to testify at trial or to offer an explanation as to why she was not called to testify (Claimant’s Post-Trial Memorandum, p 12). Claimant further argues that the Court should draw the inference that, had Officer Greene been called to testify at trial, her trial testimony would not contradict claimant’s testimony that Officer Greene was at a distance of six to seven feet from claimant when he was attacked (id.).2 The State noted in its Reply Memorandum that Officer Greene was listed as a witness for claimant and was not called to testify by claimant. Officer Greene was also listed as a witness for the State and the State indicated on the record that it was resting its case without calling the scheduled witness to testify (T:91-92). Claimant did not, at that time, ask the Court to draw an adverse inference from the State’s failure to call Officer Greene. Accordingly, the State cited a litany of cases to support its position that claimant’s request for an adverse inference must be denied on the grounds of untimeliness and that claimant failed to make a prima facie showing that Officer Greene’s testimony would have been favorable to claimant. Additionally, the State argued that Officer Greene’s testimony would have been cumulative to the statement of Officer Greene (Claimant’s Exs. 4, 5) and the Misbehavior Report (State’s Ex. B), and the testimony of Sergeant Brooks. In response, claimant’s post-trial surreply memorandum states: “I did not request a missing witness charge…[and] I am not arguing that the Court permit an adverse inference from the State’s failure to call the one witness that was in a position to observe the entire incident. I am merely stating that Claimant’s testimony that he was six to seven feet away from Correction Officer Green[e] when this incident occurred should be given the evidentiary weight it deserves and that any statements by Correction Officer Green[e] in her reports be given little weight or disregarded to the extent that the statements differ from Claimant’s in Court testimony. The reason is that she failed to appear to counter these allegations. Clearly her written statements, not subject to [cross examination], should not be given the same weight as in court testimony subject to [cross examination]“ (Claimant’s Surreply, pp 4-6). Claimant also argues that the failure of Officer Greene to testify at trial “should be weighed against her when the Court fully assesses the facts of this case” (id. at 4). Analysis It is well established that the failure to produce a witness at trial who presumably has evidence that would be material to the case, may, under certain circumstances, warrant an adverse inference from the failure to call such witness (see People v. Gonzalez, 68 NY2d 424 [1986]). To warrant an adverse inference, it must be shown that the uncalled witness is knowledgeable about a material issue in the case and that the witness would naturally be expected to provide non-cumulative testimony favorable to the party who has not called the witness and that the witness is available to that party. The burden, in the first instance, is upon the party seeking the adverse inference to “promptly notify the court” “as soon as practicable” so that the Court may appropriately exercise its discretion and the parties can tailor their trial strategy to avoid any substantial possibilities of surprise (id. at 427-428). Once the party seeking the adverse inference has made a prima facie showing that the uncalled witness is knowledgeable about a pending material issue and that such witness would be expected to testify favorably for the opposing party, the opposing party may defeat such showing. To defeat the showing, the opposing party may show that the witness is unavailable or not knowledgeable about an issue that is material or relevant. Also, it may be shown that, even if the witness is knowledgeable, the testimony would be cumulative. The Court of Appeals has instructed that, “[i]n order to allow for effective judicial review, it is imperative that all discussions regarding this matter be clearly set forth on the record so that the respective positions of each party are readily discernible” (id.). In the case at bar, claimant did not make a request at trial before the close of evidence to ask the Court to draw an adverse inference for the State’s failure to call Officer Greene to testify at trial. Rather, after the trial concluded and the parties simultaneously submitted post-trial memoranda, claimant raised the issue for the first time in his post-trial memorandum, by asking that the Court draw an adverse inference from the State’s failure to call Officer Greene to testify at trial. Claimant’s request for an adverse inference, made in a post-trial memorandum, does not adhere to the Court of Appeals direction that a request for an adverse inference must be promptly made as soon as practicable so that the Court may exercise its discretion and the parties may tailor their trial strategy. In the case at bar, claimant never sought an adverse inference at trial and it is noted that the State had another witness scheduled to testify at trial, but the State decided not to call that witness and then rested. Had claimant made the request for an adverse inference before the close of evidence, the State could have tailored its trial strategy and called Officer Greene to testify before resting. In any event, without raising the issue at trial before the close of evidence, claimant’s direct or implied request for an adverse inference is untimely and is therefore DENIED (see People v. Montello, 197 AD3d 575 [2d Dept 2021] [The request for a missing witness charge was properly denied as untimely]; Matter of State of New York v. Francisco R., 191 AD3d 989, 992 [2d Dept 2021] [The request for a missing witness charge was properly denied as untimely because it was made after all the evidence was presented and both sides had rested]). To hold otherwise would allow claimant to gain an unfair advantage in trial strategy by remaining silent at trial on an issue that could have been addressed at trial before the close of evidence instead of by ambush in a simultaneous submission of post-trial memoranda where the State lacked the opportunity to address the issue (see Matter of Spooner-Boyke v. Charles, 126 AD3d 907, 909 [2015]. Accordingly, claimant’s request for an adverse inference is DENIED. In light of the Court’s denial based upon the untimeliness of the request, the Court need not address the issues of whether claimant met his initial burden of making a prima facie showing of entitlement to an adverse inference and whether the State refuted such showing by establishing that the testimony would have been cumulative (see Thomas v. Triborough Bridge & Tunnel Auth., 270 AD2d 336, 337 [2d Dept 2000] [The request for a missing witness charge, made at the close of evidence, was properly denied as untimely "and the plaintiff did not sustain his burden of showing that the witness's in-court testimony would have constituted substantial rather than merely cumulative evidence"]). The second issue to be addressed is claimant’s request in his post-trial memorandum that the Court take judicial notice of the cases cited by claimant to establish that gang-related murders and assaults have occurred between the Bloods and the Crips and that once the Court takes judicial notice of these cases, it is clear, from claimant’s identification as a gang member, that it was reasonably foreseeable to the State that claimant would be at risk of being attacked by opposing gang members (Claimant’s Post-Trial Memorandum, pp 15-18; Claimant’s Surreply, pp 8-9). Claimant further argues that he does not have to put the State on notice by identifying an enemy or someone whom he fears; rather, it is sufficient notice to the State for claimant to identify himself as a Crip because claimant’s gang affiliation provides notice to the State that he may be assaulted. Thus, claimant argues that it is reasonably foreseeable to the State that a Crips gang member will be attacked by a Bloods gang member and therefore the State’s failure to separate claimant from the Bloods was negligent (Claimant’s Post-Trial Memorandum, p 16). The State argues in its Reply Memorandum that claimant’s request in his post-trial memorandum that the Court take judicial notice of cases to support its theory that the State was negligent in its failure to protect claimant from the foreseeable risks of harm to claimant as a known gang member is untimely and a new theory of liability that was not alleged in the claim. Therefore, the State argues that the Court should not take judicial notice of the cases and should not consider claimant’s new theory as a basis for finding the State liable. The State also argues that to prevail on such a theory would require expert testimony and that it would be speculative for the Court to find that claimant was attacked due to his gang affiliation. Additionally, the State also argues that the claim fails to allege insufficient staffing as a basis for negligence and that any testimony about staffing or officers not at their post should be stricken from the record (T:67). Analysis The claim does not specifically allege that claimant was a gang member3. The claim does allege that the State “was negligent in that it knew that the Claimant was in physical danger, after being warned of same” and that the State “had information that the claimant was a known risk to be assaulted, and failed to take the necessary and proper steps to protect him from danger; that the assault and battery was reasonably foreseeable” (Claim, 11). The Claim also alleges that the State was negligent in “failing to isolate the assailant [incarcerated person] from the Claimant” and “in its supervision” and failure to “take the proper steps to prevent the Claimant from being assaulted” (id.). Additionally, the claim alleges that the State was “further negligent in its lack of security at the Sing Sing Correctional Facility” and “negligent in that Correction Officers were present at the time of the incident, and knew the assailants were about to attack the Claimant but failed to take action to prevent same” and in failing “to terminate the assault once it began, despite being present when it occurred” (id.). Contrary to the arguments of the State, the Court finds that the claim is sufficiently specific in its allegations of a lack of security and supervision and the failure to take action to prevent the assault; therefore the Court DENIES the State’s motion to strike any testimony regarding staffing or officers not at their post. With regard to claimant’s request that the Court take judicial notice of the cases cited by claimant in his post-trial memorandum to establish that gang related murders and assaults have occurred between the Bloods and the Crips in prison settings, the Court DENIES claimant’s request that the Court take judicial notice of said cases to establish that, given claimant’s identification as a gang member, it was reasonably foreseeable to the State that claimant would be at risk of being attacked by opposing gang members. The Court’s findings in this matter are based upon the facts in evidence before this Court and not upon the facts presented to other Courts in different cases. In the case at bar, claimant’s attackers were never identified or apprehended. Claimant testified that he heard his attackers say, “Blood up” at the time of the assault and that this indicated to claimant that his attackers were members of the Bloods, a rival gang. Claimant also testified, however, that anyone could say “Blood up” without actually being a member of the Bloods gang (T:54). Accordingly, the Court finds that the evidence before the Court is inconclusive as to whether claimant was attacked by members of the Bloods gang. Thus, claimant’s argument that the attack upon him was or should have been foreseeable to the State, based upon claimant’s affiliation with the Crips gang and his assailants’ purported affiliation with the Bloods gang, fails. Similarly, claimant’s argument that the State was negligent based upon the State’s failure to consider gang affiliation when determining the housing placement of incarcerated persons with a gang affiliation, also fails. In that regard, correctional facilities have broad discretion in formulating and implementing policies related to maintaining order and security in their facilities and should be accorded deference in their decisions regarding housing (see Arteaga v. State of New York, 72 NY2d 212 [1988]; Matter of Blake v. Selsky, 10 AD3d 774, 775 [3d Dept 2004] [Courts generally defer to prison authorities in matters of internal security such as the determination as to whether an incarcerated person's presence in general population would threaten the safety and security of the facility]). It is well settled that the State is required to use reasonable care to protect the incarcerated persons of its correctional facilities from reasonably foreseeable risks of harm including the risk of attack by other incarcerated persons (see Flaherty v. State of New York, 296 NY 342 [1947]; Littlejohn v. State of New York, 218 AD2d 833 [3d Dept 1995]). In the case at bar, claimant did not indicate to the State that he had any known enemies or that he was in apprehension of harm from anyone. Contrary to the arguments made by claimant, the facts presented do not support a finding that claimant’s gang affiliation alone put the State on notice that claimant was at foreseeable risk of attack. As to claimant’s argument that the State was negligent based upon the State’s lack of supervision, the number of officers posted and Officer Greene’s failure to intervene or to take measures to stop the attack upon claimant, it is noted that “the State’s duty to [incarcerated persons] does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety…[t]he mere occurrence of an [incarcerated person] assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State” (Sanchez v. State of New York, 99 NY2d 247, 256 [2002]; Sanchez v. State of New York, 36 AD3d 1065 [3d Dept 2007]). The “defendant’s duty is limited to providing reasonable care to protect [incarcerated persons] from risks of harm that are reasonably foreseeable, i.e., those that defendant knew or should have known” (Vasquez v. State of New York, 68 AD3d 1275, 1276 [3d Dept 2009]). In the case at bar, claimant testified at trial that the attack occurred within seconds and on cross-examination, claimant testified that his recollection as to the duration of the incident was better at the time of his deposition when he had testified that the time that had elapsed from when he was grabbed to when he was slashed was “a couple of seconds…less than 5 seconds ” (T:50-53). The Court finds that the facts, as presented by claimant, who did not identify any enemies to the State or indicate to the State that he felt threatened or had any problems with anyone, are insufficient to establish that the State failed to exercise reasonable care or was negligent for the number of officers posted at the time of the assault or in failing to prevent or stop the rapidly occurring, unanticipated attack upon claimant that occurred within seconds (see Colon v. State of New York, 209 AD2d 842, 844 [3d Dept 1994] [The absence of a correction officer at the time of an assault, "in and of itself, is insufficient to support a finding that the State failed to exercise reasonable care"]). Accordingly, the State’s motion to dismiss the claim, made at the conclusion of the trial, is hereby GRANTED and the claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: January 26, 2022
