New York State Court of Claims

New York State Court of Claims

McALLISTER v. THE STATE OF NEW YORK, #2002-016-020, Claim No. 100244 and


100245


Synopsis


Inmate property loss claims were dismissed as claimant failed to make his case by a preponderance of the evidence.

Case Information

UID:
2002-016-020
Claimant(s):
COLLIS McALLISTER
Claimant short name:
McALLISTER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100244 and100245
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Collis McAllister
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph F. Romani, AAG
Third-party defendant's attorney:

Signature date:
February 21, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
These are the claims of Collis McAllister, which were tried at Sullivan Correctional Facility. McAllister testified on his own behalf, and for its part, defendant called correction officer J. Brockner.

In claim number 100244, McAllister alleges that when he was taken to the Special Housing Unit ("SHU") at Sullivan, personal property in his cell was packed up by a correction officer. When it was later unpacked, he discovered missing items: a pair of Timberland boots, a hot pot, two packs of cigarettes, four bars of soap, a tube of toothpaste, twenty-three stamps and five greeting cards. In claim number 100245, McAllister asserts that before being taken to the SHU, he was strip searched and a second pair of Timberland boots he was wearing at the time were not thereafter returned to him.

According to McAllister, he was taken to the SHU because of two "fight incidents" with other inmates. He asserted that at some point, he asked an officer where his boots were, to which the officer responded that he did not know, adding that McAllister should make a claim.

McAllister testified that once he was taken to the SHU, an officer was sent to his cell to pack up his personal belongings. He recalled that when the items were brought to him in the SHU, he learned that items were missing. According to McAllister, he then repeatedly asked after his property and was told not to worry: "You're getting your stuff."

As to the value of the missing property, McAllister testified that one of the pairs of Timberland boots (apparently the pair from his cell) had been bought from a company called "Sportsman Guide" for $82.45. He testified that the boots were six months old at the time and suggested he had worn them only twice. Aside from the foregoing, McAllister introduced no evidence at trial of the value of the missing items, referring only to his two claims without specifically testifying to any values.[1]

McAllister's I-64 "Personal Property Transferred" form prepared in connection with his SHU transfer (defendant's exhibit A) has no listing of the alleged missing items. According to McAllister, this is because the I-64 was prepared by the officer who packed up his cell out of his presence. McAllister believes that the officer gave away the missing items and accordingly, did not record them on the I-64.

Officer J. Brockner testified that he was the officer who unpacked McAllister's items in the SHU. He said the practice is that if an inmate sees missing property, "we'll make a note on the bottom of the I-64 that . . . such and such was missing . . ." and in the "inmate acknowledgment section," he would write "Refused to sign." There is no notation of any missing property on McAllister's I-64. Moreover, McAllister conceded that he signed the acknowledgment section, and offered no credible explanation that supports his claims. He asserts that Brockner failed to make a notation because he was angry over an incident in which McAllister allegedly hit another inmate over the head with a chair.
* * *
As set forth above, McAllister introduced scant evidence to demonstrate that he possessed the alleged missing property at the relevant times herein or as to the value of such items. On the whole, I am constrained to find that he failed to prove defendant's negligence by a preponderance of the evidence. Accordingly, claim nos. 100244 and 100245 are dismissed.

LET JUDGMENTS BE ENTERED ACCORDINGLY.


February 21, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]McAllister did introduce claimant's Exhibit A at trial, a receipt from J.C. Penney for two pairs of shoes. This exhibit is not relevant to either of McAllister's claims: he stated that the receipt was not for the Timberland boots referred to in his claims, but rather for other pairs of shoes; his claims contain no references to any additional missing footwear.