New York State Court of Claims

New York State Court of Claims

GRAHAM v. THE STATE OF NEW YORK, #2001-016-058, Claim No. 102892


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:
Richard Graham
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Barry Kaufman, AAG
Third-party defendant's attorney:

Signature date:
August 3, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the claim of Richard Graham, in which he alleges that defendant was negligent in connection with the loss of certain items of his personal property. The claim was tried at Mid-Orange Correctional Facility, where Graham testified on his own behalf. For its part, defendant called correction officer Harry Penn.

Graham testified that when he was about to be transferred to Mid-Orange from Woodbourne Correctional Facility, his personal belongings were packed up and an I-64 form was prepared, which he signed. See claimant's exhibit 1, dated April 26, 1999. When he arrived at Mid-Orange, he was given his property to inspect and he signed the acknowledgment section of the form indicating that all his property was intact.

Graham recalled that on August 5, 1999, he left his housing "cube" to go to a program, where he had an altercation with another inmate whom he said started fighting with him. He was then immediately taken to the Special Housing Unit ("SHU").

There is some discrepancy as to when Graham next saw his property. He recalled that on the evening of August 5, he was called to inspect his property, which had been packed up in his cube and brought to the SHU. Defendant contended that the inspection did not occur until August 9, 1999. In any event, what is not disputed is that the altercation and claimant's admission to the SHU had occurred in the morning of August 5 – at about 8:15 according to Graham – while his property was not packed up by correction officer Harry Penn until some time after Penn came on his shift at 3:00 p.m. that day.

When claimant met with Penn to inspect his property, he noticed that there were items missing and in fact the I-64 form prepared by Penn when he packed up the property in claimant's cube (see claimant's exhibit 2) does not contain items which were listed on the earlier I-64 (see claimant's exhibit 1). Graham thus surmises that his property was stolen in the six or more hours between the time he left his cube in the morning and the time when Penn packed up the property in the afternoon. Claimant explained that while he kept some items in a locker, the missing property had been unsecured in his cube when he left for his program. He added that 40 inmates would have had access to his property in his absence.

The items which Graham asserts were missing include a cassette player, headphones, a typewriter, a razor, a beard trimmer, sneakers, a fan, a lamp, shirts, jewelry, cassette tapes, glasses and dentures.[1]

Claimant recalled that when he advised Penn of the missing items, he was told to file an institutional claim, which was ultimately denied. See defendant's exhibit C, a "Facility Claim," on which the explanation for denial includes a statement that "inmate possessed two boxes to secure property."

Officer Harry Penn testified that on August 5, 1999, he was called upon to collect claimant's property when he came on his shift at 3:00 p.m. He said that after gathering the property, he took it to the SHU and secured it in a locker. Penn recalled that four days later, on August 9, he met with Graham to go over the property.

Penn confirmed that cubes are arranged in an open formation and that other inmates would have access to Graham's cube. He added that it was not unusual for an inmate to be out of his cube for a period of time while others are there.

With regard to any policy or procedure as to the timing of the packing of the property of an inmate sent to SHU, Penn stated that the packing would occur "[a]s soon as our manpower affords the ability," which he conceded was usually "soon thereafter" an inmate goes to SHU, not six to eight hours later.

Graham's case essentially comes down to an assertion that defendant was negligent in waiting six or more hours to pack his property and bring it to the SHU. However, he pointed to no rules or regulations which had been broken in that regard; as set forth above, Penn testified that the property was packed and taken to the SHU as soon as there was manpower available. Moreover, Graham conceded that his property had been left unsecured when he left for his program and was not in the lockers available to him. In view of the open housing situation in which Graham resided and the fact that any property not in a locker was regularly open and accessible, I cannot find that defendant was negligent as to the timing of the packing of Graham's property.

In view of the foregoing, IT IS ORDERED that claim no. 102892 is dismissed.


August 3, 2001
New York, New York

Judge of the Court of Claims

  1. [1]With regard to the dentures, an I-64 form dated after the August 5, 1999 incident date, i.e. on September 2, 1999 (defendant's exhibit A) lists one pair of dentures. Claimant explained that he had both bottom and top dentures and that only the bottom were stolen.