New York State Court of Claims

New York State Court of Claims

LAMAR v. THE STATE OF NEW YORK, #2002–030–052, Claim No. 103432


Pro Se inmate. Claimant did not establish by a preponderance of the credible evidence that a private remedy should be applied for the negligent mishandling of his legal mail, or that he has suffered any cognizable damages. No constitutional tort. Claim dismissed

Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

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Claimant's attorney:
Defendant's attorney:
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Signature date:
July 29, 2002
White Plains

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Appellate results:

See also (multicaptioned case)

Claimant, Gary Lamar, seeks compensation for the alleged negligent mishandling of his incoming legal mail by Sing Sing Correctional Facility (hereinafter Sing Sing) staff. Claimant further alleges a violation of his right to privacy. Trial of the matter was held at Sing Sing on June 21, 2002.

Claimant testified that his incoming privileged mail had been opened in direct violation to the rules and regulations set forth in Directive 4421.(Claimant's Ex. 2). He explained that under the Directive the facility process - with respect to legal mail - is to open it in the presence of the inmate to whom it is addressed, unless "there is a tip that there is contraband in the mail."[1]
Claimant asserted that on four separate occasions,[2] his "legal mail . . .was treated as regular correspondence" and was not opened in his presence nor entered into the log entry book, according to procedure. (See Claimant's Ex. 3, photocopies of two of the opened envelopes). He stated that he filed three separate Grievances that resulted in an investigation wherein the Grievance Clerk determined "there was truth to [his] story" and advised him to pursue "further appropriate actions", which he understood to mean "filing with the Court of Claims."
Indeed, the Inmate Grievance Resolution Committee stated, in a decision after a hearing held July 6, 2000, : "Committee notes the improper handling of legal mail has risen at an alarming rate, though Correspondence Supervisor, G. Kelly, continuously states the matter has been corrected. As such, committee recommends remedial action at the superintendent's level...." (Claimant's Ex. 1).

Claimant seeks damages in the amount of Twenty Thousand ($20,000.00) Dollars.

No other witnesses testified and no other evidence was submitted.

Although this Court is satisfied that Claimant has established, through his testimony and the Inmate Grievance Committee's report accepting responsibility, that his legal mail was, in fact, opened outside of his presence, the Court nonetheless does not have jurisdiction to decide the constitutional claim he appears to be alleging.

The Court notes that there is no "right to privacy" under the New York State Constitution. Thus, the analysis set forth in
Brown v State of New York, 89 NY2d 172 (1996), to determine whether a cause of action may be properly brought in the Court of Claims for an alleged violation of provisions of the New York State Constitution, simply does not apply[3]. Indeed, the only right to privacy recognized under New York Law is that created by Article 5 of the Civil Rights Law, and " common law right of action for invasion of privacy...." exists in New York. Waldron v Ball Corp., 210 AD2d 611, 614 (3d Dept. 1994), lv denied, 85 NY2d 803 (1995); See, also, Henriquez v Times Herald Record, 1997 WL 732444 (SDNY 1997); Hurwitz v U.S., 884 F.2d 684, cert denied, 493 US 1056 (1990). Additionally, the Court of Claims does not have jurisdiction over federal constitutional tort claims. See, Zulu v State of New York, 2001 WL 880833 (NY Ct Cl 2001); Campolito v State of New York, Claim No. 94670, Collins, J., April 27, 2000; 42 USC § 1983.
While 7 NYCRR § 721.3 and Directive 4421, require the State Department of Correctional Services (hereinafter DOCS), to open and/or inspect incoming privileged correspondence[4]
in the presence of the inmate to whom it is addressed,[5] and to make a log entry of incoming privileged correspondence erroneously opened outside of the inmate's presence,[6] "...the mere violation of a regulation resulting in the invasion of an inmate's right of privacy, will not give rise to a private civil remedy when there are already in place other remedies to protect the inmate's rights....(citations omitted)." Campolito v State of New York, supra ;[7] See also, Ruotolo v State of New York, 157 AD2d 452 (1st Dept. 1990)[8]; Lawrence v State of New York, 180 Misc 2d 337, 342 (NY Ct Cl 1999).[9]
In this case, there are adequate alternative remedies available to protect Claimant, and no private right of action should be implied. Injunctive or declaratory relief, appropriately sought in an Article 78 proceeding, could provide claimant with an adequate remedy, namely an order preventing the unauthorized opening of his privileged mail. [
Id]. Additionally, the inmate grievance process - successfully pursued in this instance - is also available.[Id]; See, also, Matter of Mc Kenna v Goord, 245 AD2d 1074, 1075 (4th Dept. 1997).[10] Finally, Claimant has not shown how, if at all, he has been damaged by the asserted mishandling of his legal mail. See, e.g., Williams v State of New York, Claim No. 98736, O'Rourke, J. June 19, 2000.
For all the foregoing reasons, Claimant has failed to establish, by a preponderance of the credible evidence, that any private remedy should be applied for the negligent mishandling of his legal mail in violation of the applicable regulations, or that he has suffered any cognizable damages.

Accordingly, Claim No. 103432 is hereby dismissed in its entirety. Let Judgment be entered accordingly.

July 29, 2002
White Plains, New York

Judge of the Court of Claims

[1]All quotations are to trial notes or audiotapes unless otherwise indicated.
[2] May 26, 2000; June 14, 2000; June 26, 2000; and July 7, 2000.
[3] The factors the Court must consider to determine if a cause of action for a constitutional tort is properly brought in the Court of Claims are whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole.
[4] NYCRR § 721.2 (a)-(c) defines "privileged correspondence" as that which is addressed to, or received from persons or entities such as, governmental/public officials, attorney's or legal services organizations and medical personnel such as physicians, dentists or hospitals.
[5] See 7 NYCRR § 721.3(b)(1).
[6] See 7 NYCRR § 721.3(b)(2).
[7] It seems that the Claimant's legal mail in that case included a video cassette tape recording of a parole revocation hearing that was to have been used in a legal proceeding, had it not been interfered with by State personnel. The Court pronounced itself "satisfied" that his inability to use the recording did not "influence the outcome" of a habeas corpus proceeding Claimant had instituted. Here, Claimant has not even alleged a specific harm.
[8] No private cause of action for alleged negligent violation of Executive Law §259-i(3)(a)(i) and 9 NYCRR § 8004.2(d)(2) in failing to obtain detention warrant for parole violation of gunman who fatally wounded decedent during an armed robbery.
[9] No private cause of action for alleged violation of Public Officers Law Article 6-A, the "Personal Privacy Protection Law." Because the legislature had addressed the idea of civil remedies and chose not to create a private right of action, it would be "imprudent for a court to add [one] by implication....".
[10] The inmate claimant sought an order through a proceeding brought pursuant to Article 78 of the Civil Practice Law and Rules directing New York State Department of Correctional Services (hereafter DOCS) personnel to refrain from opening his privileged mail outside his presence. In dismissing the petition on mootness grounds, the Appellate Division said: "The improper opening of petitioner's mail at the Attica mailroom will not be repeated because petitioner has been transferred. Further, the opening of privileged mail is not an issue that typically evades review because the grievance process is available to petitioner at any correctional facility to which he may be transferred...."