        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

753
CA 14-00671
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


DETROY LIVINGSTON, CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 120912.)


DETROY LIVINGSTON, CLAIMANT-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (JULIE M. SHERIDAN OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from a judgment of the Court of Claims (Michael E. Hudson,
J.), entered September 18, 2013. The judgment dismissed the claim
after a trial.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimant commenced this negligence action, pro se,
seeking damages for the value of property destroyed by a fire set
inside his prison cell at Attica Correctional Facility. At trial,
claimant testified that a particular correction officer set the fire
or had someone do it for him, in retaliation for claimant having filed
a grievance against him. The Court of Claims rendered a verdict in
favor of defendant and dismissed the claim. We reject claimant’s
contention that the verdict is against the weight of the evidence.

     “[T]he decision of the fact-finding court should not be disturbed
upon appeal unless it is obvious that the court’s conclusions could
not be reached under any fair interpretation of the evidence,
especially when the findings of fact rest in large measure on
considerations relating to the credibility of witnesses” (Thoreson v
Penthouse Intl., 80 NY2d 490, 495 [internal quotation marks omitted],
rearg denied 81 NY2d 835). Based on our review of the record, we
conclude that the court’s determination that claimant failed to prove
that a correction officer or anyone else employed by defendant was
involved in setting the fire in claimant’s cell is supported by a fair
interpretation of the evidence. As the court noted in its decision,
claimant acknowledged at trial that he does not know who set the fire,
and his allegations against the correction officer were based on mere
speculation. Moreover, the court was entitled to credit the testimony
of the correction officer at trial that he did not set the fire or
have any involvement in the incident. Finally, we reject claimant’s
                                 -2-                           753
                                                         CA 14-00671

further contention that he established defendant’s negligence under 7
NYCRR 1700.7 (a).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
