In its December 20, 2004 decision and order the Court characterized this
portion of the claim as sounding in bailment. Claimant opposes that
characterization on this motion and steadfastly insists that his claim sounds in
negligent investigation based upon the State's duty to provide an impartial and
thorough investigation (see claimant's memorandum of law pp 2-3) of his
administrative property claim.
As noted in the Court's prior decision and order and reaffirmed here, as a
matter of public policy there is no cause of action in the State of New York for
negligent prosecution or investigation (see Pandolfo v U.A. Cable Sys.
of Watertown, 171 AD2d 1013, 1014; Russ v State Empls. Fed. Credit
Union, 298 AD2d 791; Treacy v State of New York, 131 Misc 2d 849,
affd sub nom. Arteaga v State of New York, 125 AD2d 916,
affd 72 NY2d 212). Claimant's attempt to circumvent this prohibition by
arguing that the alleged failure to properly investigate his lost/damaged
property claim constituted ministerial neglect is unavailing. The
aforementioned public policy precludes the Court's consideration of any claim
which seeks to assert a cause of action for negligent investigation (see
Carlton v Nassau County Police Dept., 306 AD2d 365).
Claimant's reliance upon Kagan v State of New York (221 AD2d 7), De
La Rosa v State of New York, (173 Misc 2d 1007) and Rivers v State of
New York, (142 Misc 2d 563) is misplaced. Kagan involved the denial
of repeated requests for medical attention for an inmate's ear problem. De
La Rosa involved a claimant's alleged exposure to tuberculosis as a result
of the deliberate indifference of DOCS' officials. So too, Rivers was
concerned with the State's duty to provide prisoners with reasonable and
adequate medical care. None of the cited cases dealt with the issue of
negligent investigation and they do not support claimant's opposition to the
defendant's cross- motion.
Even were the Court to deny dismissal of the claim on the basis that the cause
of action stated is truly one sounding in bailment, this portion of the claim
would still be subject to dismissal, even on the Court's own motion
(Finnerty v New York State Thruway Auth., 75 NY2d 721; Ozanam Hall of
Queens Nursing Home v State of New York, 241 AD2d 670).
In Lepkowski v State of New York, 1 NY3d 201, 207 the Court of Appeals
stated that Court of Claims Act § 11 (b) "places five specific substantive
conditions upon the State's waiver of sovereign immunity by requiring the claim
to specify (1) 'the nature of [the claim];' (2) 'the time when' it arose; (3)
the 'place where' it arose; (4) ' the items of damage or injuries claimed to
have been sustained'; and (5) 'the total sum claimed'." The Court in
Lepkowski at 208 specifically held that "[t]he Court of Claims Act does
not require the State to ferret out or assemble information that section 11 (b)
obligates the claimant to allege (Cobin v State of New York, 234 AD3d
498, 499)". With regard to a claim for lost or damaged property, the claimant
herein has failed to either describe the affected property or ascribe a value
thereto. Instead, the claim references "Facility Claim #080-8545-03 ('8545')".
The failure to provide any information in the claim identifying the lost or
damaged items and their value renders this portion of the claim
"jurisdictionally defective for nonconformity with section 11 (b)'s substantive
pleading requirements (Lepkowski, supra at 209).
Paragraph "D" of the claim alleges that DOCS employees negligently packed
claimant's belongings resulting in an overcharge for postage of $73.56. The
defendant on its cross-motion alleges that the decisions of correction officials
affecting the manner in which claimant's personal property was packed and mailed
are discretionary and quasi-judicial in nature and therefore entitled to
absolute immunity (see Arteaga v State of New York, 72 NY2d 212,
supra; Tarter v State of New York, 68 NY2d 511; Tango v
Tulevech, 61 NY2d 34).
While the Court agrees that the manner of packing an inmate's property at a
correctional facility involves the use of discretion on the part of correction
officers not all discretionary actions are accorded absolute immunity
(Arteaga v State of New York, 72 NY2d 212, 216, supra; see
Tarter v State of New York, supra, 68 NY2d at 519). Some
discretionary governmental actions are subject to only qualified, rather than
absolute immunity. The Court of Appeals in Arteaga observed that
discerning the difference between the two types of discretionary actions
"requires an analysis of the functions of the particular governmental official
or employee whose conduct is in issue" (at 216-217). "The question depends not
so much on the importance of the actor's position or its title as on the scope
of the delegated discretion and whether the position entails making decisions of
a judicial nature -- i.e., decisions requiring the application of governing
rules to particular facts, an 'exercise of reasoned judgment which could
typically produce different acceptable results' [citations omitted]"
The decisions of the correction officers at Great Meadow Correctional Facility
regarding the manner of packing claimant's property, while requiring the
exercise of discretion, appear to the Court to have been subject only to a
qualified privilege, rendering the decisions actionable only if done in bad
faith or undertaken without a reasonable basis (see Arteaga v State of
New York, supra at 216). Neither the language of the instant claim
nor claimant's opposition to the defendant's summary judgment cross-motion
contain allegations of bad faith or unreasonableness. Nor has claimant's
opposition raised a question of fact in either regard. DOCS Directive #4917
authorizing the use of "old transfer bags measuring approximately 22" x 43" or
having a 100 lb. capacity" does not establish a legal duty to the claimant the
breach of which may form the basis for an action for money damages. More
importantly, the allegation that the bags used to pack claimant's belongings did
not meet the dimensions or weight capacity mentioned in the directive is not a
basis for inferring either bad faith or unreasonableness. Decisions regarding
the manner in which an inmate's property is packed or the type of bags used for
that purpose are discretionary determinations for which, in the absence of any
allegation of bad faith or unreasonable conduct the defendant is immune.
For the above reasons defendant's cross-motion to dismiss the claim is granted.
The dismissal renders academic claimant's motions to reargue and renew his prior
motions and they are accordingly denied.