Claimant seeks damages for the value of certain photographs that were seized
from him at Watertown Correctional Facility on April 30, 1997. The trial of
this claim was held on October 22, 2001, at Watertown Correctional Facility.
Claimant testified that on April 30, 1997, while he was in the process of being
transferred to Gouverneur Correctional Facility, his personal property was
searched and six nude photographs of his wife were confiscated by a correction
officer. According to claimant's testimony, the correction officer told
claimant that such photographs were contraband, and that he was not entitled to
keep them in his possession.
Claimant further testified that he told the correction officer that he wanted
the photographs to be sent to his home, and the correction officer advised him
that he would have to go through a "draft
to authorize shipment of the photographs. At trial, claimant produced his copy
of Form 2068, "Authorization for Disposal of Personal Property", which claimant
stated was completed by the correction officer and signed by the claimant on
Claimant testified that it was his understanding that once this form was
completed, the photographs would be shipped to his home, and his inmate account
would be debited for the required postage. He further testified that the
photographs were in fact never delivered, no deduction was ever made to his
account for postage, and the photographs were never returned to him.
Under cross examination, claimant acknowledged that no name or address for a
destination of the photographs was provided on Form 2068.
Tammy Burman, Inmate Records Coordinator at Watertown Correctional Facility,
testified that nude photographs had been banned from correctional facilities
since 1993, and that they were therefore considered contraband property. It is
defendant's contention that pursuant to Title 7 of the New York Codes Rules and
Regulations, Part 270, a claimant cannot be reimbursed for the loss of
Upon inspection of Form 2068, it is obvious that no name or address for a
shipment address was inserted in the indicated space on this form. Claimant,
who the Court found to be a most credible witness, testified that the correction
officer who inspected his bags had completed this form, and that claimant had
signed it after being assured that the photographs would be shipped to his home.
Claimant's testimony is supported by the fact that the photographs are listed
under the section of this form which provides that surplus personal property
will be disposed of by shipment at claimant's expense. It is significant that
lines were drawn through other sections of the form, which alternately could
have provided that personal property could be disposed by donation, transfer, or
destruction of the property. None of these options were selected.
Additionally, if a selection is made that the personal property of an inmate is
to be destroyed, the authorization must also be approved and signed by the
Deputy Superintendent for Security. No such signature appears on the form.
Accordingly, even though the State contends that these photographs were
confiscated as contraband, Form 2068, signed by an employee of the
, supports claimant's testimony that claimant had been assured that the
photographs would be sent to his home, and were not to be retained and destroyed
at the facility.
Furthermore, there was no testimony or any other evidence submitted at trial by
the defendant to establish that the photographs were in fact confiscated and
properly disposed of at the facility.
The Court finds, therefore, that the defendant had agreed to send the
photographs to claimant's home, as he requested on April 30, 1997. Once the
State agreed to send the photographs, it therefore assumed a duty to do so, on
which claimant was entitled to rely. If a decision was ultimately made that
these photographs, as contraband, were not to be mailed (and as previously
indicated, there was no such evidence introduced at trial), claimant should have
Having assumed a duty to send the photographs as requested by claimant, and
subsequently not performing this duty, the State is liable to claimant and must
respond in damages. The State cannot escape liability based upon the
regulations cited by it at trial (which expressly authorize the seizure of
contraband, including nude photographs), since it had expressly agreed to
forward these photographs to claimant's home.
Claimant seeks damages for the mental anguish suffered by him in not knowing
where the photographs are presently located, or whether they have been
destroyed. However, there is no cause of action in New York to recover for
mental anguish due to the negligent destruction of personal property, and the
Court finds that there can be no recovery for any mental anguish suffered by
claimant under these circumstances (see,
Caprino v Silsby
, 226 AD2d 1078; Jason v Parks
, 224 AD2d 494;
Zaccaro v Jenik Motor Serv.
, 148 Misc 2d 664).
The Court, therefore, must determine the value of these lost photographs. It
is extremely difficult to assess a market value for photographs, which in such
cases are personal to the claimant. Furthermore, claimant did not offer any
direct proof at trial as to valuation. The Court therefore finds as damages and
awards claimant the sum of $75.00, with interest from April 30, 1997, for the
loss of his personal property herein.
LET JUDGMENT BE ENTERED ACCORDINGLY.