New York State Court of Claims

New York State Court of Claims

DeVIVO v. THE STATE OF NEW YORK, #2000-016-053, Claim No. 97624


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):

Alan C. Marin
Claimant's attorney:
Vincent DeVivo
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
September 26, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)

Pro se claimant Vincent DeVivo alleges that because of defendant's negligence, items of his personal property were found damaged or missing at Sullivan Correctional Facility. The claim was tried on June 20, 2000 at the facility. DeVivo testified on his own behalf and defendant called correction officer Robert Wexler.
Claimant testified that on October 2, 1997, a correction officer came to his cell block and asked each inmate what his plans were for the afternoon. DeVivo explained that after making such inquiries, the officer then informed another officer in the "bubble" – who has control over the locks to the cells – of each inmate's plans so that the bubble officer could then open or lock the cells as appropriate. DeVivo informed the inquiring officer that he planned to go to the recreation yard, where he did in fact go until about 3:45 p.m. He recalled that at that time, all cells were opened for five minutes and he returned to his cell.

Upon entering, he smelled feces and then noted that his cell had been "wrecked." He called for a correction officer and Sergeant Wexler arrived and had photos of the cell taken, after which DeVivo cleaned the cell. When he was finished, he still noticed an odor and when he opened his unlocked locker, he found feces on items inside. DeVivo testified that in addition, items were missing from the locker, including special low vision aides. DeVivo, who is legally blind, testified that he had paid $571 for the vision aides. DeVivo stated that clothing, cigarettes and his electric razor were also missing. He added that 25 cassette tapes had been submerged in the toilet and no longer worked and his hot pot was smashed on the floor.

Subsequent to the trial, both defendant and claimant wrote to the Court concerning claimant's vision condition and the availability of low vision aides to claimant. This decision is made on the assumption that claimant is entitled to low vision aides if found medically appropriate, regardless of any findings made herein.

Asked whether he had had any altercations with other inmates in the weeks before the incident, claimant said no, but added that the night before, he had asked Officer Wexler to turn on the baseball game, which another inmate -- "Dollar" -- did not want to watch. Dollar pulled the plug on the television and Officer Wexler warned him that he would be in trouble if he did it again. Despite this incident, DeVivo said he did not believe that Dollar was the culprit. He added that to his knowledge, no one was ever disciplined or even identified in connection with the event.

Officer Robert Wexler confirmed that with regard to the opening and locking of cells, an officer makes rounds to ask each inmate what his plans are. The cells of those inmates who leave are deadlocked and will not open until the 3:45 "go-back." He explained that if other cells are opened – apparently for inmates who leave after the initial release following lunch – the deadlocked cells do not open. According to Wexler, the 3:45 p.m. go-back lasts for ten to fifteen minutes, during which time all cells on the block are opened. He added that some inmates immediately go back to their cells, while others talk for a while before returning, but it takes 10 to 15 minutes for all the inmates to return to their cells. Wexler also stated that a bell rings immediately before the opening and closing of the cells. He testified that there are 62 cells on the block and two officers watch the block during go-back. The inmates are not allowed in each other's cells, which is a serious offense leading to keeplock status. Claimant interjected that the two officers also watch another cell block that contains 62 cells.

Wexler testified that on the day in question, he was called over to DeVivo's cell at 4:15 p.m., upon which he saw broken items and wet tapes. He said that he took photographs of the cell and wrote a "to-from" memorandum to his supervisor regarding the incident. He recalled that he also made a report regarding the problem with Dollar the night before and he recommended that DeVivo be moved to a different cell. He added that he gave DeVivo new bedding and cleaning materials.
* * * * *
DeVivo's theory on the damage to his cell and property was that it could not have occurred during the go-back period -- which he recalled was five minutes long -- but rather would have taken longer – he estimated a full 10 to 15 minutes – and must have been done at a 3:00 break when inmates came back to their cells; he surmised that his cell must have been opened in error at that time, allowing another inmate entry. Wexler, on the other hand, testified that the go-back period lasted 10-15 minutes, long enough for the damage to have occurred at that time. As set forth above, no eyewitnesses to the damage testified at trial. Beyond theorizing, DeVivo presented no evidence that his cell was mistakenly opened during a break. Nor did he present evidence that any rules or regulations in terms of officer supervision were violated. In short, he failed to prove by a preponderance of the evidence that his cell and property were damaged because of defendant's negligence.

Accordingly, IT IS ORDERED that the claim of Vincent DeVivo be dismissed.


September 26, 2000
New York, New York
Judge of the Court of Claims