New York State Court of Claims

New York State Court of Claims

CHURCH v. THE STATE OF NEW YORK, #2007-009-028, Claim No. 113506, Motion No. M-73352


Synopsis


Defendant’s motion to dismiss this bailment claim for failure to state a cause of action was denied.

Case Information

UID:
2007-009-028
Claimant(s):
DAVID CHURCH
Claimant short name:
CHURCH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113506
Motion number(s):
M-73352
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
DAVID CHURCH, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 27, 2007
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking an order dismissing the claim for failure to state a cause of action.

The following papers were considered by the Court in connection with this motion:
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.


September 27, 2007
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims