New York State Court of Claims

New York State Court of Claims

MARTINO v. THE STATE OF NEW YORK, #2000-016-071, Claim No. 99626


Claim of pro se inmate alleging loss of unattended cassette player/radio was dismissed after trial.

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:
Alphonso Martino
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Mary Kavaney, AAG
Third-party defendant's attorney:

Signature date:
September 5, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)

claim of Alphonso Martino arises from the loss of his cassette player/radio (hereinafter referred to as the "radio") at Otisville Correctional Facility. The claim was tried at Mid-Orange Correctional Facility on August 2, 2000. Martino testified on his own behalf. Defendant called no witnesses.
Martino testified that on November 26, 1998 – Thanksgiving day – he left his dorm room, having recently moved into that particular housing unit, to go watch a football game. He left his radio with a set of headphones on top of his locker, in the corner behind his bed. When he returned to the dorm later, the headphones were there, but the radio was missing. Martino testified that the value of the radio was $28.75. On cross-examination, Martino conceded that he could have locked up the radio, and that fourteen other inmates in his dorm would have had access to the radio in his absence. However, he also stated that he knew of no other incidents in which items were stolen from the dorm.

Martino recalled that he told a correction officer about the loss, and the officer told him to look around for the item and to file a claim. Martino theorized that a "walk in,"
i.e., an inmate from another dorm, took the radio. According to Martino, Otisville personnel were too permissive in letting such inmates into the dorm and he said he had seen inmates in the dorm who did not "belong" there. Martino also maintained that since it was a holiday, the correction officers on duty should have been more vigilant in making their rounds.
As set forth above, Martino testified that he could have locked the radio in his locker, but did not. Had his radio turned up missing after he had secured it, he might have a viable theory of liability on the part of the defendant. See, e.g.,
Pollard v State of New York, 173 AD2d 906, 569 NYS2d 770 (3d Dept 1991), in which a decision finding the state liable was affirmed where the claimant's assigned metal locker, in the clear view of a correctional officer station, was broken into and items were taken. In this case, however, Martino left his radio in an unsecured area to which at least 14 other inmates had access. Beyond speculation, Martino presented no evidence that an improperly admitted "walk in" had taken the radio. Nor did he explain why the fact that it was Thanksgiving would have warranted any special security measures, nor did he present any evidence that any DOCS regulations were violated. For the foregoing reasons, I find that Martino has failed to prove defendant's negligence by a preponderance of the evidence. The claim of Alphonso Martino is thus dismissed.

September 5, 2000
New York, New York

Judge of the Court of Claims