Notice of Motion, Affirmation, with Exhibits 1,2
Affidavit in Opposition, with Exhibits 3
In his claim, claimant seeks damages for the loss of certain items of personal
property, which allegedly were taken from him by correction officers in the
package room at Mid-State Correctional Facility on or about October 27, 2006.
Claimant submitted an Administrative Claim, which was ultimately denied, and
then filed this claim seeking damages for the costs of those items and related
expenses. The items allegedly seized essentially consisted of food stuffs
ordered by claimant from “Bust the Move of New York, Inc.”.
Initially, defendant contends that the items and amounts set forth in the
instant claim are inconsistent from the items listed in the Inmate Claim Form
previously submitted by claimant at Mid-State Correctional Facility. The Court
has reviewed both the claim and the Inmate Claim Form, and find that the items
set forth are virtually identical, and defendant’s contention otherwise is
clearly insufficient to form a basis for the dismissal of this claim.
Defendant further contends, however, that the particular items seized at the
package room of Mid-State Correctional Facility consisted of baked goods which
are prohibited under Department of Correctional Services Directive 4911 (7
NYCRR 724.5). This directive was cited by one Sergeant Garza at Mid-State that
the items seized consisted of “cake, muffins, or pies.” As
such, it is defendant’s contention that these items constitute bakery
prepared foods and are not allowed pursuant to Directive 4911.
In response, claimant has submitted documentation establishing that the items
seized were commercially prepared cakes, muffins, cookies, or pies which were
ordered by claimant and mailed to him from “Bust the Move of New York,
Inc.”, that they were commercially packaged food items in sealed plastic
bags available for retail sale, and that such items are essentially snacks or
pastry items which are expressly permitted pursuant to Directive 4911.
The Court finds that the State’s reliance upon the restriction of
“no home, bakery, restaurant, or delicatessen prepared foods” set
forth in Directive 4911 is misplaced when one examines the particular items
which were purchased by claimant, delivered to him, and seized by facility
officials. The particular items allegedly seized by facility officials appear
to be of the type that are allowed under this Directive.
Defendant’s motion seeking dismissal of this claim, therefore, is hereby
denied in its entirety.
Accordingly, it is
ORDERED, that Motion No. M-73352 is hereby DENIED.