New York State Court of Claims

New York State Court of Claims

FOY v. THE STATE OF NEW YORK, #2001-016-217, Claim No. 101318


Pro se inmate claimant was awarded damages for lost property.

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:
William Foy
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
January 9, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the claim of William Foy, in which he alleges that because of defendant's negligence, certain items of his personal property were stolen at Woodbourne Correctional Facility. The claim was tried at Sullivan Correctional Facility, where Foy testified on his own behalf, and defendant called correction officer Lynn Lilley.

Foy testified that on July 27, 1998, he was taken to Woodbourne's Special Housing Unit ("SHU"), after which officers went to his dormitory and searched his "cube." He explained that his cube contained two lockers, both of which were padlocked at the time; according to Foy, the officers have master keys to inmates' lockers. Claimant recalled that he stayed in the SHU for 30 days, after which he was to be transferred to the SHU at Mid-State Correctional Facility,
i.e., apparently on August 26, 1998. He recalled that before the transfer, he was called to pack up the property from his cube and upon doing so, discovered that items were missing. He surmised that after searching his locker, the officers left it unlocked and that the missing items were then stolen. According to a facility claim form prepared by Foy, the missing items were: a shirt, two pairs of shoes, three pairs of sneakers, one pair of boots, 21 magazines, a clipper set and a watch. See claimant's exhibit 1. He testified that four cartons of cigarettes were also missing and that all the missing items were locked in his locker except the sneakers, shoes and boots.[1]
Foy said that he was paid for the cigarettes by the facility because he had a receipt, but as to other missing items, was told that he would not be paid because his possession of the items had not been verified.

Correction officer Lynn Lilley testified that he is the food service administrator at Woodbourne, currently acting in the stead of the Deputy Superintendent of Administration. He explained that the procedure for lost property is for an inmate to fill out a claim form and send it to the Deputy Superintendent of Administration, who then sends it to the Business Office to be catalogued and given a number. At that point, the inmate is sent a copy noting receipt of the claim. It is then sent to the Captain who gives it to a sergeant to be investigated. The investigative information is then sent back to the business office and then forwarded to the Deputy Superintendent for review. A decision is made to pay or partially pay and the decision is then sent to the inmate.

There appears to be an issue in this case as to whether this procedure was followed with regard to Foy's claim. Defendant acknowledges that it received Foy's initial claim, which listed only cigarettes. But defendant states that it never received Foy's second claim form listing the other items. Foy stated that he gave the second claim form to a sergeant, which defendant asserts is not the proper procedure – as set forth above, according to defendant, the proper procedure is to send the form to the Deputy Superintendent of Administration. Foy noted that he also gave his first claim to a sergeant rather than the Deputy Superintendent, and it appears undisputed that the first claim was received. In any event, Foy testified that he never received a response to the second claim, so he filed a notice of intention.
* * *
7 NYCRR §1700.7(b) provides in relevant part that "[w]hen an inmate's property was last in the control of the [Department of Correctional Services] or its agents, and the department fails without good explanation to deliver it in [sic] to the inmate . . . in the same condition as when received by the department, then there is a rebuttable presumption that the department is negligently responsible for the loss."

With regard to the shoes, sneakers and boots, claimant testified that he had not locked them up prior to their loss. As these items were thus accessible to other persons in claimant's dorm, defendant is not liable for their loss. With regard to the watch, both permits issued to Foy (see claimant's exhibit 1), which were signed by claimant, state that defendant is not responsible for loss, theft or damage to the watch.[2]
As to the polo shirt, magazines and clippers, however, Foy has made his case under 7 NYCRR §1700.7(b).[3]
As to damages, Foy's inmate claim form lists the shirt as "brand new" and having originally cost $40.00, the 21 magazines as in good condition and having originally cost $90 and the clipper set as in good condition and having originally cost $21.00. I find that the fair market value of the shirt is $32.00, the magazines $10.00 and the clippers $12.00.

Accordingly, claimant is awarded the sum of $54.00 with interest from August 26, 1998 until February 26, 1999 and from October 29, 1999 until the date of this decision pursuant to §19.1 of the Court of Claims Act, and thereafter to the date of entry of judgment pursuant to CPLR 5001 and 5002.


January 9, 2002
New York, New York

Judge of the Court of Claims

  1. [1]Foy's testimony was unclear as to the two pairs of shoes listed on his inmate claim, which are described as "black snake shoes" and "green suede shoes." At one point, he seemed to suggest that a "heavy" pair of shoes were in his locker, but later indicated that both pairs were outside.
  2. [2]While the permit also refers to a DOCS directive that apparently sets some maximum value (which directive is not in evidence), claimant made no argument that there was a maximum amount to which he was entitled under such directive.
  3. [3]Although claimant did not provide I-64 forms for these items, he credibly testified that he had attempted to obtain such documents through a FOIL request and was told they could not be located. Moreover, such items are referred to in package slips included in claimant's exhibit 1.