New York State Court of Claims

New York State Court of Claims

PETIT v. THE STATE OF NEW YORK, #2004-009-48, Claim No. 108921, Motion Nos. M-68260, M-68552


Defendant's motions to dismiss this claim were denied.

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):
M-68260, M-68552
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought two separate motions seeking an order dismissing the claim. For purposes of judicial economy, both motions will be considered together.

The following papers were considered by the Court in connection with these motions:
Pre-Answer Motion to Dismiss Claim (M-68260), Affirmation, with Exhibits 1,2

Correspondence from Claimant dated May, 2004 (Received May 26, 2004) 3

Pre-Answer Motion to Dismiss Claim (M-68552), Affirmation, with Exhibits 4,5

Filed Papers: Claim, Amended Claim, Second Amended Claim

Claimant filed his original claim on February 17, 2004, seeking damages for the loss of certain items of personal property while he was incarcerated at Mid-State Correctional Facility. According to the allegations of the claim, photographs and other items were confiscated from claimant on October 5, 2004 (sic) at the facility, and a misbehavior report was issued against him for possession of these items. Following an administrative hearing, claimant was found not guilty of the administrative violation for which he had been charged. When he asked for the return of his property, claimant alleges that it was destroyed by a prison official. Claimant then filed this claim seeking damages for the loss of those items.

In response to the filed claim, defendant brought a pre-answer motion to dismiss (M-68260), contending that this Court lacked jurisdiction based upon the failure of the claimant to state the nature of the claim and the items of damages claimed to have been sustained. Specifically, in this motion defendant argues that claimant failed to state a specific sum demanded, that he failed to set forth an accrual date, and that he failed to allege a valid cause of action and legal theory upon which the State could be liable.

In response to this motion, claimant filed an amended claim with the Clerk of the Court on April 9, 2004, and also filed a second amended claim on April 27, 2004.[1] In both the amended claim and second amended claim, claimant apparently attempted to respond to the arguments raised by defendant in its motion to dismiss.

Since it appeared to the Court that the second amended claim was timely served, the Court adjourned the State's motion to dismiss pending receipt of proof as to the date and manner of service. Claimant subsequently provided the Court with satisfactory proof that the amended claim was served upon the Attorney General by certified mail, return receipt requested, on April 29, 2004, in compliance with statutory requirements of the Court of Claims Act.[2]

As a result, by timely and properly serving his amended claim, claimant has successfully responded to the jurisdictional objections set forth in defendant's motion to dismiss.

Defendant apparently concedes this point, since it then instituted a second motion (M-68552) to dismiss the amended claim (and presumably the second amended claim), contending that it fails to set forth a valid cause of action or legal theory upon which the State can potentially be liable. Specifically, defendant contends that the destruction of personal photographs is not a compensable loss, since no monetary value can be attached to such items. Additionally, defendant contends that claimant may not recover any damages for his cause of action claiming mental anguish and aggravation resulting from the destruction of his personal photographs.

On a motion to dismiss, it is well settled that the allegations set forth in the claim are deemed to be true. In this matter, claimant has adequately set forth a cause of action for bailment, based upon his allegations that facility officials refused to return his items of personal property to him after a demand for such return had been made. While claimant may have a difficult time in establishing a monetary value for the items which were allegedly destroyed, he has, at a minimum, set forth a valid cause of action.

Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-68260 and Motion No. M-68552 are both hereby DENIED.

September 1, 2004
Syracuse, New York

Judge of the Court of Claims

[1] The two amended claims appear to be identical, except that the second amended claim contains a verification from claimant, which was not attached to the first amended claim.
[2] From the documentary proof submitted by claimant (see Item 3), the "amended claim" served on the Attorney General on April 29, 2004 coincides with the filing of the second amended claim with the Clerk of the Court on April 27, 2004.