Abdul Majid alleges that the defendant by the Department of Correctional
Services was responsible for the loss of certain items of his personal
Without objection from either party, the case was tried via video conferencing
on March 22, 2000. The assistant attorney general representing the defendant
was at Sullivan Correctional Facility; the claimant was several hundred miles
away in Franklin County at Upstate Correctional Facility. My location was the
The claim sets out a loss of $741, the largest portion of which is $460 for 15
religious books. On September 5,1996, Majid, who was at Sullivan Correctional
Facility, was transferred to Sullivan's special housing unit because of an
altercation. SHU inmates are permitted fewer items of personal property than
those in the general population. Therefore, when Majid was moved into SHU, his
property was packed up in his regular cell -- 12
worth on September 5,
Two days later on September 7
, Majid was brought out of his SHU cell, each bag that had been "I-64'ed" from
his regular cell on September 5 was opened up, and the contents placed on a
table in front of claimant. Because he had an excess of property and some of it
was perishable foodstuffs, four boxes of claimant's belongings were sent home to
his wife. Claimant signed pages one and two of exhibit A on September 7. Page
one was the September 5 catalog of what he had when he was packed up to go to
SHU; page two listed the items forwarded to his wife, including 53 books. Note
that page one lists a total of 82 books.
Claimant testified he came out of SHU in late October, for which there was an
I-64 covering six bags, dated November 1 and signed by claimant the next day
(def exh B).
Just before Christmas of 1996, claimant was transferred from Sullivan to
Shawangunk Correctional Facility in Ulster County. His property was again
packed up on December 19, 1991, as reflected in the I-64 form introduced as
defendant's exhibit C. This third and final I-64 was signed by Majid on
The defendant called to the stand correction officer G. Senft, who at the time
was assigned to Sullivan's SHU as a reception detention officer; part of his
duties included receiving inmates' property. Senft testified that after an
inmate checks his property against the I-64 list, if he believes there are
discrepancies, he may refuse to sign and such will be so noted on the form.
Majid made no objections on any of the three I-64's he signed (exhs A-C). To
that effect, claimant testified that he did not do a comprehensive review of his
property until after Christmas. While Senft on cross-examination conceded that
such procedure had not been reduced to written form, Majid
did not disprove the right of inmates to note their objections on the I-64.
Under the Court of Claims Act, a Notice of Intention to File a Claim sounding
in negligence must be filed and served within 90 days. If done so, claimant
will have two years from the date of accrual to interpose the claim (§10.3
of the Act). Majid served his Notice of Intention on February 13, 1997. Such
date is too late for any act or omission related to his September assignment to
SHU within Sullivan, or his late October release from SHU. His claim is
directed at the events of September, but his Notice of Intention provides that
the claim arose on "[December] 20, 1996, [when] I was transferred to Shawangunk.
Upon checking my property numerous personal items were either missing or
destroyed" (def affirm [M-61172], exh A).
Claimant testified that upon his arrival at Shawangunk on December 20,
he did not discover his losses for five or six days. In general, leaving aside
the disparity between the notice of intention and the claim, a loss at such time
would have been timely vis a vis
his February 13 notice of intention.
But the proof therefor is lacking -- Majid offers no I-64's, nor any documentary
or testamentary alternative (7 NYCRR §1700.6[c]). Religious books were, as
noted, a major portion of his claim, and during trial, claimant described the
specific books in some detail. The I-64 which Majid signed November 2 lists 23
religious books, and the I-64 signed December 24 lists one fewer, 22 books (def
exh B and C). In fact, the second I-64, signed November 2, references no
regular books or dictionaries, whereas the December 24 form, which includes five
regular books (or magazines) and three dictionaries, lists more books in total
than the November form does.
Majid attempted to show that he was
out of his SHU cell for too brief a period for there to have been a "meticulous"
review of his property in September. While a logbook was maintained that would
indicate such times, neither party offered it. I indicated at trial that had
claimant requested same upon receiving my letter setting the trial date, I would
have been inclined, subject to defendant's response, to order the log to be
At trial, claimant was quite forthcoming on the amount of damage or loss for
each item, but such responses were inconsistent with his written claim. Majid
explained that the $80 pair of Timberland boots included in his claim was not
lost, but only damaged, and repaired for $15. The largest item of his claim,
the $460 sought for religious books, was also presented differently. Claimant
indicated some of the 15 books were damaged, "a lot more damaged than lost." He
went on to explain that the damage to these books, some of which he testified
were 20 years old, was caused by instant coffee liquefying. No argument was
even attempted that defendant should have packed nonperishable containers of
food separately from books and papers.