New York State Court of Claims

New York State Court of Claims

FOMINAS v. THE STATE OF NEW YORK, #2001-031-501, Claim No. 99258


State not liable for destruction of inmate's property by another inmate

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: LESLIE STROTH, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 26, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Anatolis Fominas ("Claimant") filed this claim against the State of New York, alleging that on August 25, 1998, at 8:30 a.m. at Wende Correctional Facility ("Wende"), an inmate porter threw flaming paper, foods and liquids into his cell, on his person, and on his television and radio. Claimant alleges that his television set and legal papers were destroyed and that Defendant was negligent in failing to prevent this incident from occurring.

The trial of this claim took place at Wende on September 19, 2001. Claimant testified that an inmate porter was walking on the second floor of his cell block around 7:00 a.m. on August 25, 1998, while the correction officer in charge of supervising that area was on the floor below. This inmate porter approached Claimant's cell and asked for a cup of coffee. Claimant refused to give him a cup of coffee and the inmate porter went away. The same inmate porter returned shortly thereafter and asked Claimant for a cigarette. Claimant refused this request as well.

Claimant alleges that the next time this inmate porter approached, he threw urine and feces into Claimant's cell. Claimant then called out to the correction officers on the block. One officer responded, listened to Claimant explain what had just happened and then left. Claimant states that the liquid was all over his cell, in plain view. Shortly thereafter, the same inmate porter approached Claimant for the last time and threw "fire" into Claimant's cell. The fire ignited Claimant's bed sheets, causing smoke to fill the cell block.

According to Claimant, at this point the correction officer who originally responded to Claimant's call for assistance, plus two more officers, came up from the first floor with fire extinguishers and put out the fire. Claimant testified that, as a result of the incident, the inmate porter and two other inmates were moved off the company.

As for damages, Claimant asserts that his television was destroyed during the incident. Claimant stated that he purchased his television in January, 1997 for $79.99. I note that the Disbursement Request for the purchase of a television set is attached to the claim as Exhibit 1 and is dated January 23, 1997. (See also, Defendant's Ex. A) In addition, Claimant testified that his legal papers, which were either handwritten or typed by him, were also destroyed. The papers allegedly lost were not filed with the courts so Claimant has no way to replace them.

The State called Sgt. Lawrence Higley, who stated that he has been employed as a block sergeant at Wende for several years. Sgt. Higley testified that the "Second Floor 99 Company" where Claimant was housed at the time of the incident was an area used to isolate problem inmates and that a correction officer would be present at all times on the floor.[1]
The cell doors in 99 Company are solid with an opening large enough to put your face in, but nothing the size of a bucket would fit through the opening. Inmate porters are used in 99 Company to perform certain assigned tasks and chores. For example, they may clean showers, take out the garbage or pass out laundry and water to other inmates. Officers let them out of their cells each day to perform their assigned duties. An inmate can be a porter provided he has the facility's Program Committee's approval.
Sgt. Higley stated that he had reviewed Defendant's Exhibit A regarding the Internal Investigation. However, Sgt. Higley was not personally on the block when the incident happened, nor was he involved in the immediate response to the incident. It appears that Sgt. Higley did meet with Claimant, at Claimant's request, at 9:58 a.m. on the morning of the incident. At 10:25 a.m. that morning, Sgt. Higley notified 99 Company that the inmate porter involved with the incident was no longer allowed to work as a porter on 99 Company (Defendant's Ex. A, Log).

Sgt. Higley testified that the internal investigation revealed that no urine or feces was thrown into the cell. Further, the correction officer that responded to the incident did not observe any liquid at all.[2]
Nor did the 99 Company log indicate that any liquids had been thrown; if liquids had been thrown, that would have constituted "unusual activity" and been noted in the log book.
After hearing the testimony and reviewing the evidence presented, I am convinced that an incident occurred on August 25, 1998, between Claimant and an inmate porter. While I do not believe that Claimant has established that food, liquids, urine or feces were thrown into his cell, I do believe that the incident produced a fire. Claimant's testimony on that matter is corroborated by the Company log book to the extent that it notes a "smoke alarm 99 Co" occurred at 8:57 a.m. The handwritten note after that entry indicates Correction Officer Pecora reported that a "sheet was thrown on company around 99-3 cell, on fire." As further proof that an incident occurred, Sgt. Higley removed the inmate porter from his duties.

Absent evidence of improper supervision, or a known threat to Claimant, an assault upon Claimant by an inmate with whom he had no previous altercations establishes neither the existence, nor breach of a duty owing to Claimant (see,
Mochen v. State of New York, 57 AD2d 719; Van Barneveld v. State of New York, 35 AD2d 900). Further, absent evidence that the attack was foreseeable, or that segregation of the assailant was warranted under the prison rules, the State is not liable to an inmate for damages incurred as a result of an unprovoked attack by a fellow inmate (Padgett v. State of New York, 163 AD2d 914, lv denied 76 NY2d 711).
Despite the fact that an incident did occur between Claimant and the inmate porter, Claimant did not prove that Defendant had notice that such an incident was foreseeable. On cross-examination, Defense Counsel asked Claimant if this particular inmate porter was on his "enemies" list. Rather than indicating yes or no, Claimant produced his affidavit to the Commissioner of the Department of Correctional Services regarding the incident on August 25, 1998, as evidence that Defendant was on notice that Claimant and the inmate porter were enemies. Claimant prepared this document after August 25, 1998, thus it could not have been useful in preventing this incident. I therefore find that there was no prior notice to Defendant that any problem existed between these two inmates.

Likewise, Claimant has failed to establish, by a preponderance of the credible evidence, that the State was negligent in failing to properly supervise the inmate who allegedly damaged his property. Even if I were to accept as true Claimant's assertion that no officer was present at the time of the incident, I find no negligence, as unremitting supervision is not required (
Colon v. State of New York, 209 AD2d 842, 844).
Further, I find a lack of credible and convincing evidence that the incident caused damage to Claimant's television or the destruction of his legal papers given the nature of the cell door and the fact that it appears that a fire occurred only outside of Claimant's cell and that no liquids were involved. Thus, Claim No. 99258 is dismissed. All motions not previously ruled upon are hereby denied.

Let the judgment be entered accordingly.

November 26, 2001
Rochester, New York

Judge of the Court of Claims

[1]Claimant was on 99 Company as a medical hold.
[2]Sgt. Higley further explained that because of the size of the hole in the solid cell door, any attempt to throw liquid into the cell would have resulted in the formation of a puddle on the outside of the door on the floor. No one had observed a puddle on the floor by Claimant's door that day.