New York State Court of Claims

New York State Court of Claims

SHARIFF v. THE STATE OF NEW YORK, #2007-030-016, Claim No. 108786


State liable for negligent failure to protect claimant’s cell from being damaged in a cell fire, resulting in the destruction of all of his personal property. Damages $850.00. Cell fire earlier in the day, yet security concerns not heightened. Maximum security facility yet cell gates left unlocked in the afternoon, despite what should have been a heightened security concern. No indication that any searches were conducted in reaction to the morning fire, such that any incendiary devices might have been found and seized. Court credits claimant’s testimony to the effect that the investigating sergeant took too casual an approach to the investigation of the morning fire, and made inappropriate comments within the hearing of others in this maximum security setting.

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
June 18, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Abdul Shariff alleges in his claim that defendant’s agents at Green Haven Correctional Facility negligently failed to protect his cell from being damaged in a cell fire, resulting in the destruction of all of his personal property. Trial of the matter was held on April 12, 2007.

Abdul Shariff alleges in his claim that defendant’s agents at Green Haven Correctional Facility negligently failed to protect his cell from being damaged in a cell fire, resulting in the destruction of all of his personal property. Trial of the matter was held on April 12, 2007.

Claimant testified to the facts substantially as they were set forth in his claim. He said that on the morning of February 21, 2003 he left his unit to attend his call-out at the law library. While waiting to go to the library, one of the officers informed Mr. Shariff that his cell - number C-4-20 - was on fire. This occurred at about 10:15 a.m. that morning, when a cell fire had been set in cell 18 - “two cells over”[2] from claimant’s. Claimant went back to the cells, and put out the fire in cell 18.[3]

A cell-to-cell investigation followed the fire, in the form of questioning all the inmates by Sergeant Hillman, the area supervisor. He asked each inmate what had taken place, and if they had any information. Claimant said he himself was “an honor-eligible inmate” - having resided on the unit for the physically disabled (hereafter UPD) for thirteen (13) years at the time - and had a “good rapport” with Sergeant Hillman. Despite this “good rapport,” during the investigation claimant thought that the sergeant was behaving in a manner that was inappropriate in that the sergeant was “joking too much” and too loudly. Specifically, Sergeant Hillman “. . . stated jokingly to claimant ‘Shariff I heard you did it.’. . . ” [Claim No. 108786, ¶5]. The sergeant then proceeded to the next nearest occupied cell - cell 22 - wherein resided Jamal Scott an individual with some history with claimant.

Claimant explained that in 1998 Mr. Scott and claimant had an “altercation,” resulting in Mr. Scott’s placement in involuntary protective custody (IPC). Because IPC did not have proper facilities for the disabled then, Mr. Scott was returned to the UPD a few months later. When they first reencountered in the unit, and because claimant “. . . is 10 or 12 years older than Scott . . . [he] tried to make . . . [their] stay there a little reasonable because . . . [they] had to live together. Administration had spoken to both of them. As a rep of the UPD they had come to . . . [claimant].” In later cross-examination it appeared that Mr. Scott had been residing on the unit for about five (5) years at the time of the incident “in between” the visit to the IPC.

When the investigation of the morning fire of February 21, 2003 was over, the inmates were again released from their cells. Claimant said they “congregated” and were “talking about the fire in 18-cell and about the investigation, and the discrepancies in the investigation including Sergeant Hillman’s jokes.” Thereafter, Mr. Shariff left the unit to go to his afternoon program as a clerk for the Inmate Grievance Committee, as did others with scheduled afternoon programs.

Mr. Shariff returned to his cell for the 3:00 p.m. count, when the inmates again “congregated.” Jamal Scott, Claimant’s nearest neighbor in cell 22, was talking loudly about the jokes Sergeant Hillman had made. As they “congregated,” the inmates, particularly Jamal Scott and Claimant, argued about the fire and the investigation of the earlier fire.

At about 5:45 p.m., claimant next left the unit to attend his late afternoon call-out to the law library. The cell gates were open when he left. While in the library for perhaps 15 minutes, at approximately 6:15 p.m., the area officer told claimant that his cell was on fire. Rather than return to his housing unit, claimant was escorted to the IPC in the infirmary.

When officers spoke to him about this fire during their investigation, he told them that Mr. Scott and he had argued earlier about the fire that claimant put out in 18 cell. He also reminded investigators of prior history between Mr. Scott and claimant. Claimant noted for this Court that given the background between them, Mr. Scott should not have returned to the unit.

After the investigation of this fire was concluded, claimant was provided with a copy of the administrative segregation recommendation completed at the time by Lieutenant Keyser, dated February 22, 2003. [Exhibit 6]. This document was his first notice that all his property was destroyed. He also learned later that the “fire took about an hour to put out.”

This contention is supported by an unusual incident report dated April 14, 2003 that indicates that the fire and safety correction officers were called in from home to take over the firefighting operation, and that the rescue truck from the Beekman Fire Department was called in as well. [See Exhibit 15]. Correction officers began an investigation into the cause of the fire, and
“. . . [d]etermined [that] fire started in the bed area by an unknown accelerant which quickly traveled throughout cell. Fire determined to be arson. [The housing unit was] closed per [Fire and Safety Correction Officer] Bingman due to disruption of electrical power to cells caused by the fire . . . [The housing unit inmates] housed in hospital until maintenance evaluates repair of company. Shariff was placed in IPC . . .” [id.].
A different page of this unusual incident report states:
“Heat was extensive enough to buckle wall between C4/20 & C4/21 cells. Electrical components on company inoperable. Smoke heads melted. Toilet & sink exploded from the heat. Emergency call lights outside of cells not working, some totally destroyed. Yard window melted. Entire cell total loss, all contents totally destroyed.

. . . $35,000.00 to repair fire damaged cell to restore for inmate occupancy.

Damaged security steel wall & ceiling sections, cell bed platform & reinforce bars. All cell contents need replacing. (i.e. sink, toilet, electrical devices, inmate radio, etc.)” [See Exhibit 14].

Five to seven days after the investigation, he was told that they had found the arsonist. The second page of the unusual incident report quoted above states that Jamal Scott was charged with arson, creating a disturbance, and loss/damaged property in a separate misbehavior report. [Exhibit 15]. There is also an indication that the matter was referred for criminal investigation. [See Exhibit 14].

Claimant said that the way that Mr. Scott got into his cell to light the fire “in the first place was because the gate was left open.” He said that they tended to be “lax” on the UPD, although in his view it could be more “violent” than other units.

As part of the investigation, Lieutenant Keyser asked claimant for a list of items destroyed which claimant prepared for him. [See Exhibit 10]. After Mr. Shariff prepared the list, a sergeant - he could not recall the exact name but it “was something like Montgarry” - came to retrieve it. Some of the items were later found in Mr. Scott’s cell, but he did not specify which in his testimony. Thereafter, he was told to “file a claim.”

As instructed, Mr. Shariff filed a facility claim on March 15, 2003, that was denied, [Exhibit 11]. In the facility claim he indicated only that his cell was set on fire on the given date, and that nothing was salvageable. [Id.]. He claimed damages in the amount of $7,124.57, with the bulk of the items claimed being $5,000.00 worth of legal materials. [Id.]. The initial “disapproval” of the claim by the facility, dated March 27, 2003, was based upon its finding that the “[e]vidence indicates that the facility was not at fault or in any way responsible for the loss or damage.” [Id.]. For the superintendent’s appeal of the denial of the facility claim, claimant wrote on April 4, 2003: “Due to the faulty fire-alarm system, which did not go off during the fire, the facility is certainly at fault. What’s more is, the very reason the fire was set was because of the facility’s lack of training of its officers & staff, therefore the facility is at fault.” [Id.]. The claim was denied on appeal as well on May 8, 2003, with the superintendent’s representative stating: “No negligence was found on the part of the Dept. of Corr. Svcs.” [Id.].

Claimant produced some receipts and disbursement forms, which represented the cost, he said, of replacing some of the items destroyed. [See Exhibits 1, 2, 3, 4, 5, 17]. Some of the items were not listed in his original personal property loss claim [Exhibits 11 and 10], but were attached to the claim filed herein and admitted in evidence. [Exhibit 19].

On cross-examination, claimant again confirmed that he had been on the UPD for thirteen (13) years at the time of this incident, and that it was in some ways a more “violent” unit than others at “the maximum security facility.” When Mr. Scott first returned from IPC, claimant did not request that he be moved, although he did speak with administration to say they had words before. As noted before, it appears they had resided on the same unit for five (5) years as of February 21, 2003 except for the time period when Mr. Scott was in the IPC after their 1998 argument. On the day of the incident, he agreed that although he had a heated discussion with Mr. Scott, he did not thereafter speak about removing Scott from the unit to any correction personnel.

An initial grievance complaint he filed after the incident, which is stamped as filed on March 14, 2003, although it is dated February 28, 2003, describes the problem he sought resolution for as follows:
“On 2/21/03, 18 cell on 4 comp. was set on fire & quickly put out. Sgt. Hillman conducted an investigation. He went [to] cell-2-cell. Upon reaching my cell (20) he said ‘Shariff I heard you did it’. Although I knew he was joking those in ear-shot didn’t. Especially when nobody knew who did it. Later that evening my cell (20) was set on fire so severely no items were salvagable (sic) – nothing. The facility was not equipped to handle a fire of this magnitude nor was its alarm system adequate or sensitive enough.” [Exhibit 9].

The “[a]ction requested” was
“(1) that statements of that nature be refrained [from] during crisis of this nature (jokingly or not), (2) that Sgt. Hillman inform UPD that he was only joking, (3) that the facility train/retrain staff on how to deal with fires of this nature, and (4) provide adequate equipment, including the alarm system, to combat and detect fires.” [Id.].

When the grievance was denied, the committee said that the sergeant denied making “an inappropriate remark” that the “incident involving the fire . . . was properly documented in accordance with department policy . . . [and that] the grievant . . . failed to substantiate his assertion that facility staff are not properly trained to respond to a fire and that facility equipment is inadequate.” [Id.]. The decision stated further that the committee “. . . [had] not been presented with sufficient evidence to substantiate any malfeasance by the employee referenced in this complaint.” [Id.].

Claimant conceded that there was no mention of Mr. Scott in the inmate grievance complaint, but said that at the time he filed the grievance Mr. Scott had not been charged. [See Exhibits 9 and 15]. He agreed, when asked, that he did not file a subsequent grievance regarding Jamal Scott.

Claimant confirmed that he did not receive any compensation for the loss. He conceded that with respect to the inmate personal property loss claim,[4] filed on March 15, 2003, there is no mention of either any involvement by inmate Scott, or Sergeant Hillman’s comments. [Exhibit 11].

Finally in the present claim filed in the Court of Claims, claimant agreed that it is stated that the fire is alleged to have been started because of poor management of the unit, and lack of supervision. He first agreed that there is no mention in the claim of inmate Scott except to say he lived adjacent to him. Claimant then explained that Scott is noted as the arsonist in paragraph 12 of the claim but had to agree that the written claim does not reference a prior altercation with inmate Scott.

When asked by counsel if he had exhausted all of his appeals on the “criminal conviction front” - given that “some 13 years of litigation material was lost” in the fire - he confirmed that federal litigation was ongoing although his direct State level appeals had been exhausted. Claimant had submitted in evidence copies of three (3) letters he had sent to the federal district court, and the response he had received concerning the cost of duplicating papers at $.50 per page [See Exhibits 12 and 13], but had to concede that the claim herein did not list any loss of documents related to the federal matters, involving civil rights litigation in federal court. [See Exhibit 19].

He maintained, however, that he still needed State court transcripts for the pending federal litigation, regardless of the fact that his direct appeals through the State courts had been exhausted. Queens County Supreme Court had yet to respond to the “six (6) letters” he had written in an attempt to obtain the cost for replacing the burned trial transcript, instead referring him to a list of court reporters. Two letters were submitted in evidence. [Exhibit 16]. The court reporters the Queens County Supreme Court referred him to had not responded to letters he wrote, he said, “dated August 24, 2003, September 17, 2003, and October 13, 2003.” The copies of letters directed to court reporters submitted in evidence are dated, respectively, August 7, 2003 and October 13, 2003, and seem to indicate that there had been some back and forth correspondence, rather than the total silence asserted by claimant. [Exhibit 18]. Claimant said, when asked by the assistant attorney general, that the attorney who represented him “could not help . . . [him] with the cost of the transcript, having returned the documents.” When asked by counsel what he had done about finding out the cost of replacing documents since calendar year 2003, claimant said he “sent . . .[his] family down on numerous occasions.” He said he had written to the Court of Appeals “to try and get a copy of a coram nobis application [he] had submitted” but did not have a copy of that letter request.

When asked how he gained access to cell 18 in order to put out the initial fire, he said that at the time, all the cell gates were open “allowing the perpetrators to not only burn cell 18, but to burn my cell as well.” The gates were “supposed to be locked in this maximum facility prison”, he said, and “that was why one of the exhibits refers to the ‘wally ohan’ (inaudible) memo of keeping an officer on 4-Company and keeping the cell gates locked because the officers often were lax. One of the good things was that being that the gates were open, I was able to minimize one fire. Now the truth was I should have let it burn because then my cell would not have been put on fire. I set myself up to be in this situation.”

Claimant confirmed that the prices indicated for clothing and books listed on page six (6) of the claim are inclusive of depreciation. [See Exhibit 19]. As an example, “sweatshirts cost $19.00 to $20.00 each.” He said he used depreciation to arrive at a value on all the items. “Jersey is different from regular sweatshirts,” he said, “and more expensive.” He said “the brand new cost for a jersey sweat suit is like $48.00,” thus the $30.00 cost for each of four sweat suits listed is depreciated. [Id.].

He arrived at the value of the items listed on both page five (5) and six (6) of the claim [see id.] by “taking the lowest estimates he could.” For example for the documents, he said he “looked at fifty ($.50) cents a page - when trial transcripts are eleven hundred (1100) pages by themselves - to come up with $5,000.00 for transcripts.”

All the leather items and tools listed related to leather work he performed in the hobby shop. [Exhibits 10, 11 and 19]. Such work is a “good choice” from the jobs available to the handicapped, he said, because no standing is involved in making leather bags or wallets in the shop.

Claimant closed by saying that he felt he was “somewhat victimized by trying to do right. The last incident of misbehavior [he had] was nine (9) years earlier with Mr. Scott. Before that, there had been one infraction for not putting stuff under the bed - a low level infraction; whereas Scott was the catalyst for this incident. Had . . . [his] cell been locked this incident would not have occurred.” Claimant argued that “this is a maximum security prison. These companies are to be secure if not by security on the company, then during any type of movement, and the officers are supposed to oversee the movement to programs etc. There were no methods taken to secure the company after the morning incident.”

No other witnesses testified and no other relevant evidence was submitted.

Claimant appears to advance as his theory of negligence that taken together - the prior (known) animosity between Mr. Scott and himself though cooled over a five-year period, the lax security measures generally on the company, as well as the specific alleged failures on that day to secure the company with regard to the first fire and then, given the first fire, a failure to further secure the company; and the ill-advised jocularity of the officer investigating the morning fire - should render the State liable to him in damages for the foreseeable risk to his property. Based upon the uncontroverted facts presented, the Court agrees that the State of New York is responsible for the damages caused to claimant’s property.

In the simplest terms, to establish a prima facie case of negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of plaintiff’s injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence. Given the factual scenario, defendant’s agents failed to perceive a foreseeable risk that in the exercise of caution could have been avoided.

Unlike some of the other cell-fire cases that have been heard, this was not a matter of someone walking quickly by a cell and thrusting an accelerant or other fire-causing trigger into a cell without warning. See e.g. Fominas v State of New York, UID# 2001-031-501, Claim No. 99258 (Minarik, J., November 26, 2001). The investigation showed that the afternoon fire started in a bed, and that it was so fierce that the walls buckled, steel melted, and the entire unit was evacuated, resulting in a total loss at an estimated repair cost of $35,000.00 for the cell. No contradictory evidence was presented to show that there had not been a fire earlier in the day. Given the earlier fire, greater vigilance was warranted in this court’s view. No contradictory evidence was presented with regard to the methods for securing the company in this maximum security facility, nor was any rebuttal presented concerning claimant’s contentions that the cell gates were specifically left unlocked in the afternoon, despite what should have been a heightened security concern. There is no indication that any searches were conducted in reaction to the morning fire, such that any incendiary devices might have been found and seized. Additionally, the Court credits claimant’s testimony to the effect that the investigating sergeant took too casual an approach to the investigation of the morning fire, and made inappropriate comments within the hearing of others in this maximum security setting.

As to whether there was a known prior enmity between inmate Scott and claimant, by claimant’s own admission he did not mention same on the day of the incident, nor did the animosity seem to have risen to the level of a documented conflict within the several years preceding the incident. Should correction officers have been more aware of the reaction along the unit to the morning fire, and taken note of any arguments between the inmates? Perhaps, in a vigorously supervised unit. With respect to any specific problems between Scott and claimant, were the asserted prior enmity the only notice of risk of harm the court would not base a finding of liability on it alone. See e.g. Moss v State of New York, 10 Misc 3d 1060 (A), 2005 WL 3442961, 2005 NY Slip Op 52046(U) (NY Ct Cl). Here, however, it is an amalgam of circumstances that persuades the court that the State is liable, and that claimant has established his claim by a preponderance of the credible evidence.

Indeed, in similar circumstances, the court found the doctrine of res ipsa loquitur could be invoked to allow an inference of negligence to be drawn where a claimant established that he himself was not responsible for the fire in his cell at a maximum security prison that destroyed his property, even in the face of testimony by officers as to an exercise of diligence not present here. Miceli v State of New York, 179 Misc 2d 424 (Ct Cl 1998). The court said in that claim:
“Where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur negligence may be inferred in certain circumstances merely from the happening of an event and the defendant’s relation to it . . . (citations omitted) . . . The doctrine of res ipsa loquitur ‘simply recognizes what we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence . . . Res ipsa loquitur does not create a presumption in favor of the plaintiff but merely permits the inference of negligence to be drawn from the circumstance of the occurrence . . . [and] has the effect of creating a prima facie case of negligence sufficient for submission to the . . . [fact finder], and the . . . [fact finder] may – but is not required to - draw the permissible inference’. (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226.). The . . . general rule in this State [is] that res ipsa may be invoked only when the plaintiff can establish the following elements: ‘ “ ‘(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of plaintiff ’ ” ’ . . . (Miceli v State of New York, supra at 427 [citations omitted]).

Thus in Miceli v State of New York, supra at 426, the court credited the inmate claimant’s testimony concerning the events, and also credited that of a correction officer who opined that the “fire began in a box of clothes under the bed.” (Id.). The court was not convinced, however, that it was the “result of spontaneous combustion of the clothes. Rather, the most likely explanation is that it was the work of an arsonist who either gained unauthorized entry onto the gallery or who was housed on the gallery and managed to ignite the fire while . . . [an officer] was gathering the inmates who were headed for the recreation yard.” [Ibid. at 427]. There was significance ascribed to the fact that this took place at a maximum security facility, where control of the movement of inmates is supposed to be at the highest level. The court said: “. . . this arson is chargeable to the State both because it should not have occurred in the first place and because the fire, once begun, should have been detected and dealt with immediately. The area around claimant’s cell was, or should have been within the exclusive control of defendant’s employees, and the diligent exercise of supervision over the inmates in the area should have prevented the initial incendiary act from occurring, or at least have resulted in a prompt response before the fire raged out of control.” [Ibid. at 428].

Moreover, because the doctrine of res ipsa loquitur is evidentiary, it may be raised at any time when the facts warrant its application. See Medyn v State of New York, UID# 2006-018-509, Claim No. 107966, Motion No. M-71007 (Fitzpatrick, J., January 25, 2006).

Accordingly, the court is persuaded that the State should be held accountable for Claimant’s loss. In terms of damages, however, Claimant did not, for the most part, connect the real evidence submitted in the form of receipts and/or inmate account disbursement request forms, to testimony establishing what was in the cell at the time of the fire. Indeed, some of the disbursement request forms in one exhibit, duplicate those presented in another [cf. Exhibits 1 and 17]. To the extent that claimant’s testimony and the documents submitted conform with the testimony, the court finds that the fair market value of clothing lost established by claimant is in the amount of $300.00, and that with respect to the loss of legal documents claimant has established the fair market value of same as an additional $550.00, for total damages in the amount of $850.00 with interest from February 21, 2003.

It is ordered that to the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).

Defendant’s motion to dismiss, upon which decision was reserved at trial, is in all respects denied.

Let judgment be entered accordingly.

June 18, 2007
White Plains, New York

Judge of the Court of Claims

[2]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[3]. This trial testimony was slightly different than the facts asserted in the claim, in that there is no mention in the claim of a morning fire in his own cell, however it may be that Mr. Shariff simply misspoke, confusing the morning and afternoon fires. There was no further discussion of the morning fire except briefly on cross-examination as to how claimant got into cell 18 to put the fire out.
[4]. Claimant said he was not familiar with DOCS Directive 4733, regarding inmate personal property claims, but nonetheless consented to the court taking judicial notice of the directive upon application by counsel for the defendant.