Tomaselli v. State

New York State Court of Claims

Tomaselli v. State

168 Misc. 674, 6 N.Y.S.2d 435, 1938 N.Y. Misc. LEXIS 1865

CourtNew York Court of Claims

DecidedAugust 10, 1938

DocketClaim No. 23526

StatusPublished

This text of 168 Misc. 674 (Tomaselli v. State) is published on Counsel Stack Legal Research, covering New York Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tomaselli v. State, 168 Misc. 674, 6 N.Y.S.2d 435, 1938 N.Y. Misc. LEXIS 1865 (N.Y. Super. Ct. 1938).

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Opinion

Ryan, J.

Claimant was injured while an inmate of Attica State Prison serving sentence for conviction of a felony. We are convinced that his injuries were due to the negligence of the prison guards and that claimant was free from contributory negligence and so find.

Were it not for a special act of the Legislature, however, claimant could not recover. (Penal Law, § 510; Green v. State, 278 N. Y. 15, 17; Bhullar v. State, 248 App. Div. 802.) Claimant’s enabling act is chapter 382 of the Laws of 1933, effective April 24, 1933.

Claimant was released from Attica in 1932. On January 27, 1933, he was indicted for a new offense, also a felony. He pleaded guilty thereto April 11, 1933, and was sentenced by the Monroe County Court to Auburn State Prison May 2, 1933, for the term of fifteen years.

Did claimant’s last sentence, under which he is now serving, destroy the effectiveness of the enabling act and make available to the State the defense of section 510 of the Penal Law? We hold that it did not, because we believe that the right to sue, granted to claimant by the Legislature when it enacted chapter 382 of the Laws of 1933, is not one of the “ civil rights ” described in section 510 of the Penal Law. It is rather a special statutory grant which the Legislature could have withheld had it chosen. Claimant is entitled to recover herein.

Gibbs, J., concurs.

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Ryan, J.

Claimant was injured while an inmate of Attica State Prison serving sentence for conviction of a felony. We are convinced that his injuries were due to the negligence of the prison guards and that claimant was free from contributory negligence and so find.

Were it not for a special act of the Legislature, however, claimant could not recover. (Penal Law, § 510; Green v. State, 278 N. Y. 15, 17; Bhullar v. State, 248 App. Div. 802.) Claimant’s enabling act is chapter 382 of the Laws of 1933, effective April 24, 1933.

Claimant was released from Attica in 1932. On January 27, 1933, he was indicted for a new offense, also a felony. He pleaded guilty thereto April 11, 1933, and was sentenced by the Monroe County Court to Auburn State Prison May 2, 1933, for the term of fifteen years.

Did claimant’s last sentence, under which he is now serving, destroy the effectiveness of the enabling act and make available to the State the defense of section 510 of the Penal Law? We hold that it did not, because we believe that the right to sue, granted to claimant by the Legislature when it enacted chapter 382 of the Laws of 1933, is not one of the “ civil rights ” described in section 510 of the Penal Law. It is rather a special statutory grant which the Legislature could have withheld had it chosen. Claimant is entitled to recover herein.

Gibbs, J., concurs.

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Bluebook (online)

168 Misc. 674, 6 N.Y.S.2d 435, 1938 N.Y. Misc. LEXIS 1865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tomaselli-v-state-nyclaimsct-1938.

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