New York State Court of Claims

New York State Court of Claims

JOSEPH v. THE STATE OF NEW YORK, #2007-029-056, Claim No. 110061


Damages awarded for loss of inmate’s property upon his transfer within the system and for excessive postage charges. Defendant’s contention that claimant failed to exhaust his administrative remedies was specious.

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):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Kevan J. Acton, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 9, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for the alleged loss of and damage to his personal property in connection with his transfer from Shawangunk Correctional Facility to Upstate Correctional Facility in December 2003, and thence to Elmira Correctional Facility in May 2004. After the claim was scheduled for trial, defendant moved for an order of dismissal contending that claimant failed to exhaust the personal property claims administrative remedy as required by Court of Claims Act § 10(9). The court denied that motion, noting that it was not clear based on the submitted papers whether claimant had in fact exhausted his administrative remedies, and noted that the issue of compliance with § 10(9) would be addressed in the trial decision.[1]

The claim may be separated into three parts. The first relates to property allegedly lost or damaged in connection with the transfer from Shawangunk to Upstate, represented by Exhibit 1 (7 pages; claimant’s Inmate Claim Form dated January 20, 2004 and related documentation concerning that claim seeking $269.00 in damages consisting of 11 separate categories of property and for alleged postage overcharges). That claim was initially rejected by the facility, with instructions to resubmit it with documentation substantiating the alleged values of the property. Claimant testified he appealed that decision, wrote several letters to the superintendent, but the claim was ultimately disapproved. The submitted documents contain no reason for the disapproval, but do contain a memo from the Institution Steward at Elmira, undated, stating: “Your claim has been addressed. There is no further review at this facility. You have the option to file a claim with the Court of Claims, please contact the law library if you need assistance or forms” (id., p 7).

Although the court received the exhibit, it was clearly noted on the record that nothing contained therein constituted evidence of the value of any of the items. The sole proof as to value was in the form of a receipt for two plastic storage boxes, totaling $13.44 (Exhibit 8). Claimant offered no other receipts, or any testimony or other evidence as to the purchase date, purchase price, condition or value of any of the other items.

The second aspect of the claim relates to a keyboard that was damaged in claimant’s first transfer, from Upstate to Elmira, represented by Exhibit 3 (16 pages; claimant’s Inmate Claim Form alleging that a switch on the keyboard was broken and supporting documentation). In response to this claim, the personnel at Elmira acknowledged that the switch had been broken in transit and at the State’s expense, they sent the keyboard to American Musical Supply, the company in New Jersey from whom claimant had purchased the keyboard, for repair. In a letter dated August 18, 2004, the Deputy Superintendent at Elmira advised claimant that “[a]fter many conversations with American Musical Supply it was discovered they had in error repaired and resold the keyboard” (id., p 3) and that they had refunded claimant’s purchase price of $190.90.

Although claimant acknowledges his receipt of the funds, he alleges that he was unable to replace the keyboard for that amount because the specific model had been discontinued and the current models all cost more.

The third aspect of the claim seeks damages for loss of and damage to other property in connection with the transfer from Upstate to Elmira, and for alleged postage overcharges, represented by Exhibit 4 (9 pages; claimant’s Inmate Claim Form dated May 24, 2004 and associated documents). This claim was initially approved in part, with claimant offered reimbursement of $25.61. Not satisfied with that resolution of his $219.50 claim, claimant appealed to the superintendent, who reduced the offer to $18.50 and advised claimant that “[a]t this time your options are to either accept the payment of $18.50 or file a claim with the NYS Court of Claims” (id., p 7). [2] The papers before the court contain no explanation of the basis for either figure.

Again, claimant offered no proof as to the purchase date, purchase price, condition or value of any of the lost or damaged property.

As the foregoing recitation of the trial evidence makes clear, and as the court ruled at trial, claimant has satisfied the exhaustion requirement contained in Court of Claims Act § 10(9). Indeed, he was specifically advised of that fact by defendant in two separate documents quoted herein, documents that were not part of the motion papers submitted in support of defendant’s pretrial dismissal motion, a motion that was totally without legal or factual foundation and that was based on an incomplete and misleading record.

Concerning the merits of the first aspect of the claim (see Exhibit 1), leaving aside for the moment the claim seeking reimbursement for excessive postage charges, other than the two plastic storage boxes which cost claimant $13.44 and for which he seeks $10.00 in damages, there was absolutely no proof of value and no basis for an award of damages.

With respect to the second aspect of the claim, arising from the damaged keyboard, it is clear that claimant received full reimbursement for the cost of the keyboard and that defendant has no further liability. To the extent claimant asserts he was not made whole by the reimbursement of the purchase price because prices had risen and he could not replace the keyboard for that amount, his potential claim in that regard would properly be asserted against American Musical Supply, not the State of New York. It was that company that made the mistake and that company that paid claimant what it felt was the proper measure of damages. The unauthorized disposition of the keyboard was not a natural or foreseeable result of defendant’s wrongful conduct in damaging the keyboard nor was it a natural or foreseeable consequence of defendant’s decision to compensate claimant by assuming responsibility for the repair of the keyboard. Defendant fully satisfied any obligation it had with respect to the keyboard by sending it out for repair and then obtaining the refund of the purchase price for claimant.

With respect to the third aspect of the claim, again leaving aside alleged shipping overcharges, although claimant did not submit proof of the value of the lost and damaged property at this trial, he did submit sufficient proof in the Inmate Claim proceeding to warrant defendant’s approval of his claim in the amount of $25.61. Although that amount was reduced by the Superintendent, after claimant’s appeal, to $18.50, the reason for that reduction does not appear in the record. The comments portion of the “Appeal Review” section of the Inmate Claim Form (Exhibit 4, p 2) is blank, with the sole entry being the check mark next to the “Approved” box and the amount of $18.50 filled in. [3]

Pursuant to 7 NYCRR § 1700.6, “[i]n order to approve payment” of an inmate personal property claim, the claim reviewer must determine, inter alia, that “the inmate has satisfactorily proved ownership,” that DOCS or its agents were negligent “and that such negligence caused the loss of some or all of the property”and must further determine “the proper amount to be paid.” Regardless of the proof submitted at this trial, claimant necessarily satisfied the requirements of the regulation, at least to the extent of $25.61, and the court construes the hearing officer’s determination in that regard as providing sufficient basis for an award herein for said amount.

In connection with the claim for excessive shipping costs, claimant testified that when he was originally confined to special housing (SHU) at Shawangunk, he was allowed to keep some of his property in his cell but the remainder was stored in long-term storage. When he was transferred to Upstate, all of his property, including what was held in long-term storage, was shipped there. Regulations allow only four bags to be shipped with the inmate, with the remainder shipped by the United States Postal Service, with the inmate responsible for packing (the cost of boxes) and shipping charges. Since he had a total of 11 bags, he was charged for shipping seven bags. Total packing and shipping charges for the seven bags were $129.85.

Claimant testified that he was not allowed to sort out the property that was being held in long-term storage because he was confined in SHU and that some of that property – books, towels and laundry items – did not belong to him but in fact belonged to Shawangunk Correctional Facility and should have not been shipped with his property. He remained in SHU while at Upstate, and the same property was sent from Upstate to Elmira without claimant having examined it at Upstate. Claimant was charged an additional $130.84 in packing and shipping charges for seven bags in connection with this transfer. In both cases, claimant asserts that two out of the seven bags for which he was charged for packing and shipping consisted of State-owned property that should not have been transferred with him, much less at his expense. Thus claimant seeks reimbursement of the packing and shipping costs for two of the seven boxes in each case, 29% of the $260.69 total costs, or $75.60.

Defendant offered no response to claimant’s allegations that some of the property that was packed from his cell when he was initially sent to SHU at Shawangunk consisted of State property, that the State property should not have been sent with him to Upstate and thence to Elmira, that he did not have the chance to segregate the State property from his property and that he was wrongfully charged for shipping State property. The court finds claimant is entitled to recover $75.60 on this aspect of his claim.

To summarize, the court finds claimant is entitled to damages of $10.00 for the plastic storage bins, $25.61 for the property reflected on the May 24, 2004 Inmate Claim Form (Exhibit 4) and $75.60 for reimbursement for excessive packing and shipping charges, for a total award of $111.21, together with interest at the statutory rate from May 24, 2004. Claimant may also recover any filing fee actually paid (Court of Claims Act § 11-a[2]). The balance of the claim is dismissed for failure of proof.

The Clerk of the Court is directed to enter judgment in accordance with this decision.

January 9, 2008
White Plains, New York

Judge of the Court of Claims

[1].See Joseph v State of New York (Ct Cl, Mignano, J., UID No. 2007-029-038, Claim No. 110061, Motion No. M-73873, 10/1/07).
[2].Claimant was advised by the Deputy Superintendent: “If you choose to file a claim with the NYS Court of Claims you must file the claim itself or a “Notice of Intent to File a Claim” with the Court within one hundred twenty days (120) after the date the administrative remedy has been exhausted” (Exhibit 4, p 7). This is a completely erroneous and misleading statement of the law, which does not provide for service of a Notice of Intention in inmate property claims (see Pristell v State of New York, 40 AD3d 1198 [3d Dept 2007]).
[3].Cf. 7 NYCRR § 1700.3(b)(3): “The appeal reviewer shall examine the entire record, secure additional information as needed, and render a written decision. The initial claim decision should be reversed only where the provisions of this Part [Part 1700 Inmate Personal Property Claims] and department directive 2733 have not been followed.”