New York State Court of Claims

New York State Court of Claims

MCPHERSON v. THE STATE OF NEW YORK, #2000-015-082, Claim No. 101725, Motion No. M-61965


Inmate claim alleging mental anguish or emotional distress stemming from loss of personal property (bank books, social security card and copy of birth certificate) dismissed for failure to state a cause of action.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Calvin Theodore McPherson, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence DillonAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 22, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the defendant for an order dismissing the claim for failure to state a cause of action is granted. Claimant is an inmate appearing pro se and alleges that some time during August 1999, or prior thereto, employees of the Department of Correctional Services (DOCS) became aware that the contents of his personal property file were missing. The missing items included a Glens Falls National Bank savings account passbook, a savings account passbook and certificate of deposit from Wyoming County Bank, a social security card and a copy of the claimant's birth certificate. Claimant alleges that DOCS' employees withheld information concerning the loss and that he first became aware of it at approximately 5:00 p.m. on December 15, 1999 when he met with an investigator from the New York State Inspector General's Office. A claim was filed with the Clerk of the Court on January 4, 2000 and received by the Attorney General on the same date. Defendant seeks dismissal upon the grounds that there is no cause of action stated as the only damages sought involve emotional distress arising from the loss of personal property and that the claim was not timely interposed. The claim alleges that claimant has suffered past mental anguish which prevents him from sleeping soundly, and will suffer future mental anguish because he no longer trusts DOCS' employees to protect his property and fears that the property may be misused causing him to sustain legal, private investigator and credit reporting agency fees. Claimant argues in paragraph 5 of his unsworn statement submitted in opposition to the motion that the damages sustained are as follows:
Claimant suffered mental anguish, and continues to do so, in addition, State has no [sic] recovered a valid Social Security Card or Birth Certificate which it was responsible for securing and allowed to be sent out of the Facility, to which unknown damages could be taking place even at this time. Thus establishing damage and damages that may be currently ongoing.
"Generally, no recovery can be had in an action for negligence for mental anguish or emotional distress caused by observation or awareness of unintended damage to one's property" (36 NY Jur 2d, Damages § 101, p 177). The rule applies to a claim by a person who did not witness the damage to the property but allegedly suffered serious shock, anxiety and mental distress (Caprino v Silsby, 226 AD2d 1078). Moreover, a negligent communication concerning the status of personal property which allegedly causes mental suffering is not actionable (Eisenbarth v Shearson Loeb Rhoades, Inc., 110 Misc 2d 578). The rule precluding recovery for emotional distress caused by injury to property extends even to an allegation that the mental distress caused physical symptoms such as a heart attack (Stahli v McGlynn, 47 AD2d 238). An exception to the rule arises where damage to personal property has placed a person in fear of physical injury (see, Atherton v 21 E. 92nd St. Corp., 149 AD2d 354, 356). Claimant has not alleged that he feared physical injury as a direct result of the loss of the items of personal property. All that he has alleged is past and possibly future emotional distress caused by worrying about the missing items, which has caused him some sleeplessness. Under the above cited cases, no recovery is permissible for such alleged injuries. Moreover, the allegation concerning the possibility of incurring future legal fees, private investigator fees and credit investigation fees based upon a misuse of claimant's social security card or birth certificate is purely speculative in nature.

Since the claim is being dismissed for failure to state a cause of action the Court declines to reach the second prong of the dismissal motion.

September 22, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 30, 2000;
  2. Affirmation of G. Lawrence Dillon dated June 30, 2000, with exhibits;
  3. Unsworn statement in opposition of Calvin Theodore McPherson dated July 5, 2000.