New York State Court of Claims

New York State Court of Claims

MARINO v. THE STATE OF NEW YORK, #2005-010-051, Claim No. 109623, Motion No. M-70633


Synopsis


Claimant's motion for an order imposing sanctions upon defendant is denied.

Case Information

UID:
2005-010-051
Claimant(s):
LEO A. MARINO
Claimant short name:
MARINO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109623
Motion number(s):
M-70633
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
LEO A. MARINOPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 9, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1- 4 were read and considered by the Court on claimant's motion for an order imposing sanctions upon defendant:
Notice of Motion, Claimant's Supporting Affidavit and Exhibits............................1

Defendant's Affirmation in Opposition and Exhibits...............................................2

Claimant's Reply......................................................................................................3

Defendant's Sur Reply and Exhibits.........................................................................4

Claim No. 109623 alleges, inter alia, $3.70 in damages for the purported loss of claimant's stamps. Claimant, an inmate proceeding pro se, maintains that this aspect of his claim, which contends that, during his incarceration, defendant took his stamps without providing him with a receipt, was captured by the cameras outside the mess hall. Claimant moves for sanctions on the ground that defendant willfully destroyed a videotape which would establish this branch of his claim. In support of his motion, claimant cites to his Inmate Claim Form which states, "[n]otice is hereby given to keep the tapes of this incident, for use by the Court of Claims" (Ex. A).

Defendant opposes the motion on numerous grounds. In support of its position, defendant submits an affidavit of the facility's Deputy Superintendent of Security and an affidavit of the Assistant Director of the Inmate Grievance Program. Defendant's papers establish that, contrary to claimant's assertions, a videotape was never created from the digital taping system which is maintained in the facility and routinely taped over as part of the facility's ordinary procedure to reuse its digital tapes. Additionally, despite claimant's allegation of notice to defendant to preserve this recording, the facility's procedure does not mandate the creation of a videotape to be used for future inmate property claims.

Motion DENIED.


November 9, 2005
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims