New York State Court of Claims

New York State Court of Claims

MORALES v. THE STATE OF NEW YORK, #2004-032-108, Claim No. 104174, Motion No. M-68969


An inmate's claim based on allegations that another inmate threw away his cross and chain, personal property, is dismissed. The claim does not state a cause of action for bailment because the property was never turned over to the care of the state; there is no private cause of action based on negligent investigation; and the complained-of actions of the correction officer were discretionary in nature rather than ministerial.

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):

Claimant's attorney:
Miguel Morales, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kathleen M. Arnold, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 7, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from claimant's loss of a chain and cross that, it is alleged, were thrown out of a window into the snow by claimant's cellmate at Upstate Correctional Facility. Claimant and his cellmate had a disagreement, following which the cellmate, Jimenez, took the chain and cross that were lying on the top of claimant's bible. A scuffle ensued and when a correction officer opened the door to the recreation pen, Jimenez ran out and threw the items through a window. The officer told claimant that he would retrieve the property when it was warmer.

The claim is somewhat unclear as to what occurred next, but apparently Jimenez somehow found and was able to reach the chain and cross, took them back, and kept them in his possession (claim, ¶9).[1] Claimant thereafter filed a facility claim, which was disapproved on a finding that claimant had sent the "chain and pendant" to his home. Claimant contends that the investigation of his grievance was ineffective because these items were entirely different, a chain and locket that he had sent to his daughter that were never in his possession in the housing unit. The facility claim was also disapproved on appeal. It is claimant's contention that the State is liable for the loss of his chain and cross, because the correction officer could have looked for it in the snow at the time it was thrown there. If he had done so before inmate Jimenez was able to reach the location where he had thrown them, the items would have been found and returned to claimant.

Counsel for defendant has moved for an order of dismissal, contending that claimant fails to state a cause of action for bailment, since the items were never in the possession of the State and, further, that there is no private cause of action for negligent investigation (Coyne v State of New York, 120 AD2d 769 [3d Dept 1986]). Claimant has made no submission in opposition to the motion, apparently conceding that his claim is not viable. The Court also notes that the claim could also be construed as stating a cause of action sounding in negligence, based on the correction officer's failure to immediately retrieve the chain and cross from the snow. By its nature, however, such an omission would result from a decision based on an assessment of a number of variables, weighing that action against other duties and requirements of his job. In other words, the officer's decision about whether to immediately retrieve the chain and cross would be a discretionary determination, rather than a breach of a ministerial duty. Discretionary determinations of this nature may not give rise to liability on the part of the State (see Tango v Tulevech, 61 NY2d 34, 41 [1983]).

Defendant's motion is granted and Claim No. 104174 is dismissed.

December 7, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for an order of dismissal:
1. Notice of Motion and Supporting Affirmation of Kathleen M. Arnold, Esq., AAG, with annexed Exhibit;

2. Affidavit in Opposition (none received);

Filed papers: Claim; Answer

[1] One is given the impression that inmate Jimenez threw the items into the snow at a location that he could later access.