New York State Court of Claims

New York State Court of Claims

RADWAN v. THE STATE OF NEW YORK, #2003-028-533, Claim No. 107146, Motion No. M-66385


Synopsis


Case Information

UID:
2003-028-533
Claimant(s):
RADWAN OMAR A/K/A OMAR RADWAN
Claimant short name:
RADWAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107146
Motion number(s):
M-66385
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
RADWAN OMAR A/K/A OMAR RADWAN, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Mary B. Kavaney, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 1, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered by the Court in connection with Defendant's Motion to Dismiss pursuant to CPLR §3211(a)(7):
(1) Notice of Motion and supporting Affirmation of Assistant Attorney General Mary B. Kavaney (Kavaney Affirmation) with Exhibit attached, filed on February 7, 2003;

(2) Letter of Radwan Omar received on February 13, 2003. The Claimant herein filed a claim on January 2, 2003, alleging the loss of property that took place during his transfer from Riker's Island to the Downstate Correctional Facility on August 21, 2002. He alleges that the supervising transportation officer was responsible for insuring that his property was properly loaded onto the transportation vehicle.

The Defendant moves to dismiss the claim for failure to state a cause of action. The State alleges that the Downstate Correctional Facility does not accept the personal property of inmates who are transferred into the facility.[1] Rather, the inmate is advised that he must arrange for the transportation of his personalty. Furthermore, the Claimant was transported by county authorities and not the State Department of Correctional Services.

In response, Claimant characterizes the "Affidavit" of Assistant Attorney General Mary B. Kavaney as "duplicitous." He does not challenge the fact that he was not transported by State Correction Officers, nor does he take issue with Mr. Orsino's statement that it is the policy of the Defendant not to accept any personal belongings of newly committed inmates. In fact, Claimant acknowledges that Mr. Orsino was correct when he stated that the State never had possession of his property.

A review of the directives referred to by Claimant reveal that they deal with the transfer of inmates' property "upon transfer to another facility (Directive 4917)" or for "temporary securing and storing personal property" when an inmate leaves his facility on a short term basis (Directive 4934). It is, therefore, clear that neither of the directives relied upon by the Claimant apply to personal property being transferred from a local facility to a State facility, but only from a State facility to a State facility.

Accordingly, after having reviewed all of the above, the State's motion to dismiss is granted, and the claim is dismissed.


May 1, 2003
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims





[1] An exception is made only for religious articles and legal paperwork (Affidavit of Dominick Orsino, Exhibit 1, annexed to Notice of Motion, p 1 [unpaginated]).