New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2001-009-110, Claim No. 96497


Claimant brought this claim seeking damages for the loss of certain photographs, while he was in custody at Watertown Cor. Fac. The Court found that the State had agreed to forward the photographs to claimant's home, but did not do so, and therefore found the State liable and awarded claimant $75.00.

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:
Defendant's attorney:
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
December 13, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

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 process"[1]
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 that day.
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 contraband property.

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 State[2]
, 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 been notified.

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.


December 13, 2001
Syracuse, New York

Judge of the Court of Claims

[1] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.
[2] The signature is illegible, so identification of the employee who signed Form 2068 was not made at trial.