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
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
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.
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
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
, 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
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
Let the judgment be entered accordingly.