FRANK v. THE STATE OF NEW YORK, #2007-044-022, Claim No. 109316
After trial, claimant awarded $530 for property destroyed when his cell was set
on fire at time when he was absent from cell. Court found defendant had
exclusive control of the area, located in a maximum security facility where
access to cells should be limited, at a time of day where there was no
reasonable basis for inmates to have been loose on the cellblock.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CATHERINE C. SCHAEWE
BRONSON FRANK, pro se
HON. ANDREW M. CUOMO, ATTORNEY
GENERALBY: Joseph F. Romani, Assistant Attorney General
November 29, 2007
See also (multicaptioned
Claimant, a former inmate proceeding pro se, seeks to recover damages for
property destroyed in a fire in his cell at Elmira Correctional Facility
(Elmira) on February 15, 2004.
Trial of the
matter was held in the Binghamton District on November 14, 2007.
Claimant contends that defendant was negligent in leaving the end gates of the
gallery unlocked while the inmates were at breakfast, allowing another inmate to
enter the gallery unsupervised and set the fire.
Claimant testified that he went to breakfast at approximately 7:30 on the
morning of the fire. When he returned to the cellblock, he saw from a lower
floor that his cell was on fire. He had been one of the last inmates on the
gallery to leave, and he testified that his cell door was locked. Upon seeing
the fire, he asked a correction officer for permission to go to his cell, but
permission was denied. Claimant was then put into involuntary protective
custody, and was thereafter denied the opportunity to view the cell once the
fire was put out, or to pack up any remaining items.
Claimant said he did not know at the time, and never subsequently found out who
set the fire. However, he testified that there was another inmate residing in a
nearby gallery with whom he did not get along (and whose name he said he no
longer remembered), and he had advised Correction Officer Caporiccio of this
approximately two weeks prior to the fire. He had not asked to be moved from
his cell, however, nor had he requested that the other inmate be put on his
Correction Officer Caporiccio testified that he was not on duty on the day of
the fire. He did not recollect claimant advising him of any trouble with
another inmate. He also indicated that, if he had been advised of such
information, he would have passed it on to his area supervisor. Caporiccio
further testified that at the general time of this occurrence, as a general
practice, the end gates of the galleries would have been left open in order to
allow access to inmates bringing meals to the inmates on the gallery who did not
leave their cells during mealtimes. He stated that the inmates who brought the
food would deliver it to the gallery porters; the end gates would then be
locked, and the gallery porters would distribute the food. He said that if an
officer was on the block, that officer would escort the inmates who would
deliver the food to the porters, but that sometimes that officer would have
other duties and would not be available.
Correction Officer Girardi, who was the number one officer on the block that
day, did recall the fire. He testified that the fire alarm behind the desk went
off at approximately 7:45 a.m. or 7:50 a.m., while the inmates were at
breakfast, and he and Correction Officer Houck (the number two officer) noticed
smoke. He said that Houck responded to the fire, and he (Girardi) logged the
incident. Girardi said that Houck would have been responsible for the end
At trial, Houck said he only “vaguely” recognized claimant. Houck
testified that he did not have any particular recollection of the status of the
end gates that morning. He indicated that he thought they were closed, but
“that was two years ago or more.” He did recall, however, that when
the fire occurred, the food had not yet been delivered for the inmates who were
still in their cells. Houck stated that the smoke alarm went off and he got a
fire extinguisher and the key to claimant’s cell, went to the cell,
unlocked it, entered, and put out the fire. He said that the fire in the area
of claimant's locker was particularly difficult to extinguish. He had no
recollection regarding what property was damaged. Houck said he was not aware
at the time of any problems between claimant and any other inmates.
Correction Officer Kincaid, who investigated the fire, testified as well. He
said that he filled out an accident report and took photographs of the
He was the Acting Fire and Safety
Officer, because the regular officer was not on duty, so he said he did not
routinely investigate cell fires. He stated that he did not reach a conclusion
regarding the cause of the fire, or who set it. He did say that there were a
lot of papers in the cell, but he could not even tell whether there was a locker
Correction Lieutenant Van Orden
well. He was the area supervisor that morning. He did not recall how many
inmates were housed on the block at the time. He stated that he became aware of
the fire at approximately 7:30 a.m., upon hearing the fire alarm, and responded
as soon as he could. When he arrived at claimant's cell, the fire had already
been extinguished. He said that the fire was concentrated in the back right
portion of the cell, near claimant's bed. He noted that this is the location
where most inmates store their personal items.
Van Orden indicated that he also conducted an investigation regarding the cause
of the fire. When he spoke to claimant during the course of the investigation,
claimant indicated that he had been having problems with another inmate.
However, claimant refused to identify the other inmate. Van Orden said the
block officers - including Caporiccio, the officer claimant said he advised of
the problems - were also unable to provide him with any information regarding
problems between claimant and another inmate. Claimant declined protective
custody, so Van Orden ordered him to be placed in involuntary protective
custody. Van Orden never determined who set the fire.
Van Orden said that, during the course of his investigation, he determined that
the individual officers in charge of the end gates had no specific policy
regarding locking those gates when inmates leave the galleries. Accordingly,
Van Orden initiated a policy that the end gates would be locked after the
inmates left the galleries, and further that the inmates bringing the food to
those inmates remaining in their cells would be escorted by guards.
After the fire, claimant filed a claim for his damaged and destroyed property.
In that claim, he noted that he “blame[d] the officer's [sic] for leaving
the end gates open so other's [sic] from other gallery's [sic] can come
in” (Claimant's Exhibit 2). A memorandum from Van Orden regarding this
claim was introduced at trial (Claimant's Exhibit 3). In that memorandum, Van
Orden notes that claimant:
. . . did have a valid issue regarding this grievance complaint. . . .
I informed Officer Caporiccio that the company end gates should be secured and
opened by the Officer while he escorts the feed up workers in the block.
I agree with the resolution of inmate Frank and have informed the Officers in
the block that the company gates will remain locked when inmates leave the block
for the morning meal. The Officer running the company to the mess hall will
ensure that the company gates are secured before leaving the area.
Van Orden did testify at trial that, prior to his institution of this new
policy, leaving the end gates unlocked while the inmates were at their meals was
not a violation of policy, practice or procedure.
At the close of claimant’s case, defendant moved to dismiss the claim on
the ground that claimant had failed to establish a prima facie case of
negligence. The Court reserved decision upon the motion.
As a landowner, the State has a duty to act as any reasonable person would to
maintain its premises in a reasonably safe condition (Basso v Miller, 40
NY2d 233 ). This duty applies to the State's responsibility for its
correctional facilities (Kandrach v State of New York, 188 AD2d 910
). However, defendant is not an insurer of the safety of those within its
facilities, and negligence may not be inferred solely from the happening of an
accident (Melendez v State of New York, 283 AD2d 729 , appeal
dismissed 97 NY2d 649 ). To establish liability, claimant must prove
by a preponderance of the evidence that the State breached a duty of care owed
to the claimant and that the breach of duty proximately caused the claimant's
injury (Basso v Miller, supra, at 240-241).
The testimony clearly established that claimant was not present in his cell at
the time of the fire, and that the cell was locked. In maximum security
facilities, “access to an inmate’s cell is, or should be, limited to
authorized facility personnel and to a relatively few other inmates, such as
feed-up porters” (Miceli v State of New York, 179 Misc 2d 424, 427
). Under these circumstances, in a maximum security facility at a time
when most of the inmates were at breakfast and the few remaining were presumably
locked in their cells, the area can reasonably be said to have been under
defendant’s exclusive control (id. at 427 - 428). Moreover, as
Officer Houck testified, the food had not yet arrived for the
“feed-up” of the remaining inmates, so there was no reasonable basis
for any inmate to have been loose on the cellblock and able to cause a serious
fire. The Court therefore finds that defendant was negligent in not maintaining
diligent supervision of the area (cf. Moss v State of New York, Ct
Cl, Sept. 7, 2005, Schweitzer, J., Claim No. 106197 [UID # 2005-036-502]
[defendant not liable for fire in claimant’s cell at medium-security
facility where inmates are allowed to move about freely]).
Absent any testimony to the contrary, the Court finds claimant’s
testimony persuasive regarding the items which were destroyed, as listed on his
inmate claim form. Although receipts would have been the best evidence of fair
market value, the Court credits claimant’s testimony that the receipts for
his property were destroyed in the fire, and his uncontradicted testimony
regarding the value will suffice (see Watson v State of New York, Ct Cl,
Sept. 21, 2006, Scuccimarra, J., Claim No. 108382 [UID # 2006-030-022]). The
Court further adopts claimant’s estimate of applicable depreciation for
those items over one year old, as listed by claimant (see Schaffner v
Pierce, 75 Misc 2d 21 ). Claimant is accordingly awarded $530,
inclusive of depreciation, for the items referenced above.
With regard to the photographs of claimant’s deceased parents,
unfortunately, personally meaningful items of this sort can be attributed no
fair market value (see Benton v State of New York, Ct Cl, July 8, 1999,
Collins, J., Claim No. 94337). Additionally, as a general rule, legal work has
no value (7 NYCRR 1700.8 [a] ), and the Court declines to award any damages
for claimant’s lost legal papers upon the absence of proof which might
allow such an award.
Claimant’s request for punitive damages, which are not permissible in the
Court of Claims (Sharapata v Town of Islip, 56 NY2d 332 ; Harvey
v State of New York, 281 AD2d 846 ), is denied.
In conclusion, claimant is hereby awarded damages in the amount of $530, plus
the appropriate statutory interest from February 15, 2004. Any and all motions
upon which the Court may have previously reserved or which were not previously
determined, are hereby denied.
Finally, to the extent that claimant has paid a filing fee, it may be recovered
pursuant to Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.
Binghamton, New York
HON. CATHERINE C. SCHAEWE
Judge of the Court
. Although the second and fourth paragraphs of
claimant's claim state that the fire occurred on February 15, 2003
documentation annexed thereto, such as the Involuntary Protective Custody
recommendation prepared by Department of Correctional Services (DOCS) personnel,
states that the incident occurred in 2004, rather than 2003. Moreover,
defendant did not raise the issue either at trial or in its Verified Answer.
Accordingly, the Court will disregard the inaccurate date.
. Neither the accident report nor the
photographs were introduced into evidence. Claimant did not make any discovery
demands, and defendant did not offer the items at trial.
. Van Orden was a sergeant at the time of the
fire, and has since been promoted.