
    Curtis Newton, Appellant, v State of New York, Respondent.
    (Claim No. 85626.)
    [725 NYS2d 503]
   —Judgment unanimously affirmed without costs. Memorandum: Claimant, an inmate at Attica Correctional Facility, commenced this action seeking damages for the injury that he sustained when another inmate stabbed him in the eye. Claimant alleged that defendant was negligent in its supervision of the inmates and in failing to have heightened security despite its awareness of a serious altercation in another part of the prison that morning. The Court of Claims properly dismissed the claim after a trial on the issue of liability. “The State’s duty to an incarcerated person encompasses protection from the foreseeable risk of harm at the hands of other prisoners. Because the State is not an insurer of an inmate’s safety, it will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable” (Schittino v State of New York, 262 AD2d 824, 825, lv denied 94 NY2d 752).

The court found that heightened security in the general population area of the prison was not warranted because that population was completely segregated from the long-term population where the earlier altercation occurred. The court also found that the attack was the unforeseeable result of a lost wager over a basketball game and was not the result of inadequate security or connected to racial tensions involved in the earlier altercation. Where, as here, the court’s decision is based upon a fair interpretation of the evidence, it will not be disturbed on appeal (see, Farace v State of New York, 266 AD2d 870). (Appeal from Judgment of Court of Claims, Corbett, Jr., J. — Dismiss Claim.) Present — Pigott, Jr., P. J., Wisner, Scudder, Kehoe and Burns, JJ.  