Claimant filed two claims (Claim Nos. 109528 and 109529) both for stolen
property as a
result of two of his lockers being defective. At the time of these incidents,
Claimant was an inmate at Cape Vincent Correctional Facility. Claimant is
diabetic and receives large food packages from his family and makes significant
purchases at the commissary. In each claim, he claims losses of food, tapes,
and magazines. In Claim No.109528, he also claims lost stamps, cigars and
cigarettes, and in Claim No. 109529, he claims a lost cassette and
For the first claim (Claim No. 109528), Claimant testified that on February 8,
2004, he went to church about 1:30 p.m. and returned to his dorm at 3:30 p.m.
As required, Claimant said he had placed his personal belongings in his locker
and locked it. He testified that when he returned to his cube, some items were
missing from his locker. He reported the incident to Correction Officer
(hereinafter C.O.) Fleming who noted it in the
Claimant filed an administrative
claim for his lost property with the facility which was investigated and denied.
A copy of this administrative claim, the initial determination, and appeal was
admitted into evidence as Claimant's Exhibit 1.
In April 2004, Claimant was transferred to a different housing unit. On his
second claim (Claim No. 109529), he testified that he reported to a C.O. that
his locker was damaged and that the door could be opened with the lock in place.
According to Claimant, the C.O. said he would submit a work order but the lock
was never repaired. On May 10, 2004, Claimant was out of the facility for a
medical appointment. When he returned at 4:30 p.m., he discovered that items
were missing from his locker. He reported his loss to the Sergeant and filed an
administrative claim which was denied. A copy of this administrative claim, the
facility determination, and appeal was admitted into evidence as Claimant's
C.O. David Fleming testified on behalf of the Defendant in Claim No. 109528.
He testified that on February 8, 2004, he worked both the 7:00 a.m. to 3:00 p.m.
shift and the 3:00 p.m. to 11:00 p.m. shift in E Dorm where the Claimant was
housed. He could not recall whether he worked the 7:00 a.m. to 3:00 p.m. shift
in dorm E-1 or E-2. Claimant's cube was in E-2. C.O. Fleming received
Claimant's complaint of a theft from his locker and noted it on the log book at
4:25 p.m. He also went with Claimant and looked at the locker. He testified
that the locker was the same as it was when Claimant moved in, the edges were in
line but it showed signs of wear and tear. C.O. Fleming testified that he did
not see any signs of tampering. The lockers, he said, are inspected daily
On cross-examination, C.O. Fleming acknowledged that a work order was placed to
repair Claimant's locker. He said in his memo
to Sgt. Britton dated February 23, 2004, that Claimant's locker was damaged
before the incident. C.O. Fleming then testified it was normal wear.
The State did not call any witnesses on Claim No. 109529, relying on the
documents received into evidence. The administrative claim investigation report
in Claimant's May 10 claim of lost property indicates that his locker showed no
signs of a break-in, and the locker still contained some of the items Claimant
said were stolen.
The State has a duty to provide reasonable protection for an inmate's property
(see 7 NYCRR §1700.7[a]). The State also has a duty to maintain its
property in a reasonably safe condition (see Preston v State of New York,
59 NY2d 997). Here, Claimant alleges in both claims that the State failed
to provide him with a locker which could be secured. To succeed, Claimant must
prove that the State knew or had reason to know that Claimant's two assigned
lockers were damaged or defective and that the damage or defect caused
In Claim No. 109528, Claimant failed to establish that the State had any prior
notice of damage or defect to his locker which made it insecure. Although C.O.
Fleming testified the locker had some damage when Claimant received it, the
locker looked the same when he went to Claimant's locker after the alleged theft
on February 8. A search of Claimant's locker on February 11, 2004, revealed the
presence of many of the alleged missing items.
Claim No. 109528 is DISMISSED.
Claim No. 109529 also fails in the absence of credible evidence that his locker
was damaged making it insecure. Claimant alleges that he was assigned this
particular locker upon his arrival on April 28, 2004. He testified that he told
an officer that his locker was defective on April 29, 2004, and a work order was
to be submitted. Defendant failed to produce the work order as demanded during
discovery. It is disturbing to this Court to find that this document was not
supplied or its existence denied after a search. Nonetheless, the Court does
not find the failure to respond wilful (see CPLR 3126). An investigation
into Claimant's report of this incident found no evidence that Claimant's locker
was damaged or tampered with, nor were any other inmates seen in the vicinity of
Claimant's cube prior to the reported theft. Claimant has failed to establish
that the items he alleged were missing were the result of a damaged
Accordingly, both Claims, Nos.109528 and 109529 are DISMISSED. LET JUDGMENTS
BE ENTERED ACCORDINGLY.