New York State Court of Claims

New York State Court of Claims

Flowers v. THE STATE OF NEW YORK, #2000-015-043, Claim No. 100648-A, Motion No. M-61536


The State does not enjoy absolute immunity for discretionary governmental decisions when an inmate's claim alleges a loss of property due to the failure of correction officers to secure the area of an inmate's cell.

Case Information

Claimant short name:
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Richard Flowers, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 30, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the defendant for an order pursuant to CPLR 3211 (a) (7) dismissing the claim for failure to state a cause of action is denied. This is a claim by an inmate appearing pro se to recover the sum of $120.77 as the reasonable value of items of personal property allegedly lost through the negligence of employees of the Department of Correctional Services on May 26, 1999 in the B2 Dorm sleeping area at Marcy Correctional Facility. The claim alleges that B2 dorm is an area intended for housing medically and physically handicapped inmates. A portion of the claim challenges determinations of Marcy Superintendent Garry H. Filion with respect to discretionary housing and personnel policies and decisions. However, a portion of the claim alleges that Correction Officer Emminger allowed inmates not housed in the B2 sleeping area to enter that area on a regular basis thus jeopardizing the security of the property of the residents.

The basis for the dismissal motion is sovereign immunity involving discretionary governmental determinations. In particular, at paragraph 3 of his affirmation offered in support of the motion, Assistant Attorney General Joel L. Marmelstein argues:
It is respectfully submitted that the Defendant enjoys absolute immunity from any cause of action based on such a theory. 'Corrections personnel are entitled to absolute immunity for those discretionary decisions in furtherance of general policies and purposes where the exercise of reasoned judgment can produce different acceptable results.'
While defense counsel is correct as to those portions of the claim that could be interpreted as challenging administrative decisions concerning allocation of prison and staff resources the argument is not correct with respect to the allegation that the State was negligent in providing security for claimant's cube in the B2 Dorm (Pollard v State of New York, 173 AD2d 906). In particular, the Second Department in the case of Foy v State of New York, 182 AD2d 670, 671, rejected such an argument in the following language:
We disagree with the State's contention that it is immune from liability, based on the doctrine of sovereign immunity. The claimant contends that the State negligently failed to properly secure the area of his cell and thus he is not merely challenging prison administration or allocation of staff or resources.
Upon this motion record, there exists a triable issue of fact as to whether the claimant or DOCS employees were responsible for the alleged loss of claimant's property (see Matter of Harrison v State of New York, 262 AD2d 833).

May 30, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 11, 2000;
  2. Affirmation of Joel L. Marmelstein dated April 11, 2000, with exhibit;
  3. Claim filed on July 2, 1999.