Pollard v. State

• Decision Date: 02 May 1991
• Citation: 173 A.D.2d 906,569 N.Y.S.2d 770
• Parties: Cornelius POLLARD, Respondent, v. STATE of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 770

569 N.Y.S.2d 770

173 A.D.2d 906

Cornelius POLLARD, Respondent, v. STATE of New York, Appellant.

Supreme Court, Appellate Division Third Department.

May 2, 1991.

Robert Abrams, Atty. Gen. (Denise A. Hartman, of counsel), Albany, for appellant.

Cornelius Pollard, in pro. per.

Before MAHONEY, P.J., and CASEY, WEISS, YESAWICH and HARVEY, JJ.

MAHONEY, Presiding Justice.

Appeal from a judgment in favor of claimant, entered March 16, 1990, upon a decision of the Court of Claims (Orlando, J.).

Claimant, an inmate at Greene Correctional Facility in Greene County, filed a claim against the State alleging negligence on the State's part in failing to provide adequate security in the prison dormitory area, resulting in the theft of his portable cassette player and headphones from his locker. Subsequent to trial, the Court of Claims issued a decision holding that the State's lack of supervision over the dormitory area was the proximate cause of claimant's loss and awarded him the sum of $60 plus interest. This appeal ensued.

The State's first ground for reversal of the judgment in claimant's favor is that because it did not waive its sovereign immunity from liability for the exercise of discretionary judgments regarding general security measures in a prison dormitory, it cannot be held liable for claimant's loss. We disagree.

While the State can, as it has done in this case, raise for the first time on appeal the defense of sovereign immunity because it "brings into question jurisdiction of the subject under the Court of Claims Act, [and] may be raised at any time" (Heisler v. State of New York, 78 A.D.2d 767, 768, 433 N.Y.S.2d 646), such defense, on the facts present herein, does not preclude recovery. Claimant does not challenge prison administration or allocation of staff or resources. He simply states in his claim that the State was negligent in providing security for his belongings (see, Thomas v. State of New York, 144 A.D.2d 882, 534 N.Y.S.2d 815 [negligent destruction of property]; Emmi v. State of New York, 143 A.D.2d 876, 878, 533 N.Y.S.2d 406 [negligent maintenance of State property]. As Heisler v. State of New York, supra, Emmi v. State of New York, supra, and Thomas v. State of New York, supra, clearly indicate, the State has a duty recognized by the law of torts; accordingly, liability may be imposed by application of general tort principles and the doctrine of sovereign immunity cannot serve as a bar to claimant's action. Turning to the issue of ordinary common-law negligence, we cannot fault the findings of the Court of Claims that claimant secured his personal belongings, including his cassette player and headphones, in an assigned metal locker with a padlock purchased from the correctional facility and that claimant did so before leaving the locker room area to report to his work assignment. Equally unassailable is the court's finding that when claimant returned, his locker was open and his personalty was missing. Further, the...