New York State Court of Claims

New York State Court of Claims

PORTER v. STATE OF NEW YORK, #2005-018-479, Claim Nos. 109528, 109529


Synopsis


Claim Nos.109528 and 109529 are both dismissed. 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. Claim No. 109529 also fails in the absence of credible evidence that his locker was damaged making it insecure.

Case Information

UID:
2005-018-479
Claimant(s):
BARRY PORTER The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
PORTER
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109528, 109529
Motion number(s):

Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
BARRY PORTERPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 4, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 headphones.

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 logbook.[1] 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 Exhibit 1.

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 during rounds.

On cross-examination, C.O. Fleming acknowledged that a work order was placed to repair Claimant's locker. He said in his memo[2] 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 Claimant's loss.

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 locker.

Accordingly, both Claims, Nos.109528 and 109529 are DISMISSED. LET JUDGMENTS BE ENTERED ACCORDINGLY.

August 4, 2005
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims



[1]Exhibit 5.
[2]Exhibit 8.