New York State Court of Claims

New York State Court of Claims

GREEN v. STATE OF NEW YORK, #2005-015-019, Claim No. 109511, Motion Nos. M-69774, M-69775, CM-69835


Court granted cross-motion to dismiss bailment claim based upon alleged improper packing of claimant's property by correction officers. In absence of showing of bad faith or unreasonable conduct on part of CO packing decisions are discretionary acts for which the State is immune.

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-69774, M-69775
Cross-motion number(s):
Claimant's attorney:
Shawn Green, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen Arnold, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 10, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's cross-motion for summary judgment seeking an order dismissing the claim is granted. Dismissal of the claim renders academic consideration of claimant's separate motions to reargue and to renew his prior motions (M-68998, M-69069 and M-69138) which were denied by decision and order dated December 20, 2004 and filed January 3, 2005. Defendant asserts on its cross-motion that that portion of the claim alleging Department of Correctional Services (DOCS) employees were negligent in their investigation and processing of an administrative claim regarding certain of claimant's personal property, which was lost and/or damaged during an intra-facility transfer, fails to state a cause of action.

Paragraph "c" of the claim alleges:
Claimant received six bags of personal property mailed from Great Meadow to Green Haven that had several items missing and some items damage [sic] when inspected and inventoried. See Facility Claim # 080-8545-03 ('8545').

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]" (Id.).

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.

June 10, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion (M-69774) dated February 3, 2005;
  2. "Affirmation" of Shawn Green sworn to February 3, 2005;
  3. Notice of motion (M-69775) dated February 3, 2005;
  4. "Affirmation" of Shawn Green sworn to February 3, 2005 with exhibits;
  5. Notice of cross-motion dated March 8, 2005;
  6. Affirmation in opposition to claimant's motion and in support of defense cross-motion for summary judgment of Kathleen M. Arnold dated March 8, 2005 with exhibits;
  7. "Reply" of Shawn Green sworn to April 12, 2005.