New York State Court of Claims

New York State Court of Claims

RACZ v. THE STATE OF NEW YORK, #2007-030-004, Claim No. 109495


Claimant did not establish after trial by a preponderance of the credible evidence all the elements necessary to four causes of action asserted in the claim. Claimant not credible. First and second causes of action lost property; did not pursue administrative remedy in timely fashion, thus claim here untimely; did not establish bailment elements. Third cause of action not established. No showing that withdrawals from inmate account made in contravention of any law or in error, or that Claimant has not received a complete remedy by reimbursement received. Fourth cause of action concerning alleged failures to follow regulations concerning the treatment of legal mail, and the resulting loss of his personal property claim against the City of New York, it also is not established. Although 7 NYCRR §721.3 authorizes advancement of postage for legal mail, not established correspondence marked properly nor any documentation Claimant submitted an advance request or that he was eligible to receive an advance or that regulations concerning review by counsel were not followed, if indeed mail properly marked “legal mail” was returned. No indication that Claimant had a viable cause of action vs City of New York at time or had used the appeal process relative to his criminal conviction, which would have been the mechanism for challenging a violation of a plea agreement.

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:
Third-party defendant’s attorney:

Signature date:
February 13, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Zsolt Racz alleges four different causes of action in his Claim stemming from Defendant’s agents’ negligent failures regarding Claimant’s personal property first when he arrived from Rikers Island at the reception area of Downstate Correctional Facility (hereinafter Downstate), and later after he was moved to Clinton Correctional Facility (hereafter Clinton). Trial of the matter was held at Downstate on December 8, 2006.
Claimant testified that on October 10, 2003, in the draft area of Downstate, correction officers would not allow stamps in his possession in excess of $20.00, and other items in his possession when he arrived from his transfer from Rikers Island. Stamps, pens, prestamped envelopes, legal research pads, and some items of clothing were all seized. Rather than allowing him to direct that the seized property be held for pickup by a visitor, he was forced to authorize the mailing of the property to an acquaintance recently released from Rikers who lived nearby in Wappinger Falls. Claimant’s original idea was that because the acquaintance lived nearby he could visit claimant and pick up the property as allowed by regulation. Instead, Claimant asserts he was not given that option, and was forced to execute an Authorization for Disposal of Property form directing that the box of seized property be mailed to Mr. O’Keefe, the acquaintance.
The form submitted in evidence, dated October 10, 2003, is signed by the Claimant and directs that the following items be mailed at Claimant’s expense to Mr. O’Keefe: (1) shirt; (1) T-shirt; (1) pants; (1) “socks + 1”; (1) shoes; (1) pants and (1) undershorts. [See Exhibit 1]. The Court notes that on the face of the form, four options for disposing of the property are set forth. [Ibid.]. The inmate may (1) ship the property at his own expense, (2) send out the property via a visitor, with the proviso that it would only be held for fourteen (14) days, and that a second choice should also be selected should the visitor not come or accept the property, (3) donate the property to a charitable organization, or (4) destroy the property at the facility. [Ibid.]. A disbursement request form appears to have been simultaneously completed, directing disbursement of $6.24 for mailing by UPS. [Ibid.].
Claimant testified that other property was not allowed, including 4 pairs of pants he had just purchased at the commissary at Rikers, 2 blue ball point pens, writing paper, and legal research copies concerning his criminal case. He repeated that he was not given an opportunity to choose how to dispose of these. Indeed, he stated that he wanted to use the extra postage confiscated to mail the materials, but was not given the option. The only choices given, he claimed, were that everything be “placed in the garbage or destroyed, or mailing.”
Mr. Racz claimed that he was not given a clear opportunity to elect what should happen to his excess property, as provided in “facility Directive 49 section 21.”
Additionally “Directive 2788 only allows certain types of postage to be advanced”, he said. Correction personnel “forced” him to remove monies in advance from his account to pay for this transmission of the property. He explained that he was “forced to sign a disbursement form” [see Exhibit 3] when what was being asked for was an “advancement” against his funds [also see Exhibit 3] that may be used under more limited circumstances than the situation he was presented with on October 10, 2003. He “did not have funds yet” because he had just transferred - so they “forced” him to sign an incorrect form.
Notably, Claimant did not testify that the property mailed did not arrive at its destination, nor did he explain how he was damaged by signing what he termed the “wrong form.” His facility claim [020-200-03], filed on February 1, 2004, was denied On February 5, 2004 as untimely, and also because Claimant had not provided an “appropriate reason” for the untimely submission. [See Exhibit A].
Concerning his second cause of action, Claimant testified that on November 6, 2003, he was being processed for transfer from Downstate to Clinton and underwent a strip search at that time. Legal mail he had received and a “private address book” were handed to one of the correction officers standing by while the strip search was conducted. The mail and the private address book were not returned. Mr. Racz said that “there is a regulation that says such legal mail should be put with the medical bag if it hadn’t been packed up in the draft bags.” Claimant said he was also missing clothing items when he arrived at Clinton. He had to replace socks, underwear, and handkerchiefs. Every six (6) months State-issued clothing is replaced, he explained. Claimant appeared to say that if an inmate is transferred to another facility before six (6) months have passed
, he is charged by DOCS for the items that need replacing. Thus in regard to this cause of action he asked for compensation for the handkerchief in the amount of $.59, but said that socks and underwear were already replaced. The total amount sought was “$157.41 damages less the replacement cost of the items already replaced.” Claimant appears to have filed a facility claim [020- 243-03] with regard to this cause of action as well, that was denied on March 16, 2004 as untimely. [See Exhibit A]. By way of explanation of the denial of the facility claim, the “appeal review” indicates that Claimant had arrived at Clinton on November 6, 2003 yet did not file the grievance until February 16, 2004, resulting in too “much time to insure a thorough investigation.” [Ibid.]. No inventory form or other documentation of what property was included or excluded in the draft pack-up or taken during the strip search was submitted by Claimant.
With regard to his third cause of action, Claimant appeared to be saying that monies received from the New York City Department of Corrections was not treated correctly as “inmate wages” but rather noted as “miscellaneous receipts,” in contravention of “Directive 2788.” Claimant appeared to be saying that since the monies were not transferred to Downstate as inmate wages; by the time he was transferred from Downstate to Clinton the error was continued. It is unclear how this damaged Claimant if it occurred, or if Claimant pursued any administrative remedy relative to challenging how his inmate account was handled. Claimant referred to his Exhibit 5 - that contains a receipt for $43.27 dated December 29, 2003 - and also contains a receipt for copying costs of a claim for property loss he was trying to institute against the City of New York dated December 23, 2003, but it is again unclear how he was damaged, or how these actions “resulted in a spending loss of $25.96” as he testified.
In his filed Claim [See Claim Number 109495, ¶¶ 11-16], the third cause of action appears to revolve around an alleged error in deducting certain expenses from his account that should have been deducted from another inmate’s account, since there is a reference to an indictment number that is not his own on his printout sheet, he asserts, as well as errors in deducting disciplinary surcharges. Claimant filed a facility claim [020-244-03] on February 20, 2004 relative to these issues according to the Claim before this Court, that was denied on March 16, 2004. [See Exhibit A]. The denial form states “all surcharges were and will continue to be deducted in accordance with departmental policy.” [Ibid.].
Finally, Claimant testified that his fourth cause of action concerns the purported failure by correctional personnel to timely mail his claim against New York City regarding property confiscated in connection with his arrest. His claim against New York City, he asserted, was disallowed on January 26, 2004 as untimely, because it was not filed within ninety (90) days. Mr. Racz said that he viewed the accrual date of his claim as the date of his sentencing on September 29, 2003. He asserted that his property was “confiscated as an inducement to plea,” and that on July 9, 2003 the Assistant District Attorney “promised” Claimant would get the property seized, including over $8,000.00 worth of jewelry and rare coins. Claimant referred to portions of his plea minutes that were appended to a Notice to Admit submitted to the Defendant herein as indicating such a promise. Indeed, assuming these were the plea minutes they indicate that recovery could be had at the time of sentencing. [Ex L in Claimant’s Notice to Admit]. While on the one hand Mr. Racz appeared to be saying that this cause of action is that he was damaged by the alleged failure to timely mail out his claim against the City of New York, he also appeared to be asserting in this forum that he wanted recovery because of New York City’s alleged failure to complete its promise to return the property as part of the plea agreement.
Although his testimony was not clear, in the filed Claim Mr. Racz indicates that he placed his claim against New York City in the mailbox at Clinton on December 23, 2003 with the indication that it was “legal mail”, but it was not sent out within 24 hours as required. [Claim Number 109495, ¶¶17-25]. He claims that payment for postage was not advanced, and that as a result, the property claim was “acknowledged only on 1/22/04 and disallowed on 1/26/04 for not being served/filed within 90 days by the NYC Office of the Comptroller Bureau of Law and Adjustment.” [Ibid. ¶18]. Claimant asserts that rather than honor his advance payment request for legal mail, personnel returned the envelope to him on December 24, 2003, and then “presumably Defendant failed to handle and mail it even on the next Monday, December 29, 2003 properly, although Claimant redeposited it on the day of return with the unnecessarily requested part of the Certified Mail Receipt along with specific notices on Green Slips to the Business Office and the Inmate Correspondence Unit/Office about the time sensitivity of the mail. In fact, they neglected to send back postmarked the receipt, they asked for, ever since and denying the existence of any record about it.” [Ibid. ¶23]. He indicates in the Claim that an inmate account statement for the period from November 29, 2003 through December 31, 2003 shows a transaction reflecting an advance postage in the amount of $2.67 on December 31, 2003 and its partial collection in the amount of $1.44 on the same date. [Ibid. ¶24]. There is no indication that this particular transaction relates to the mailing of his claim against the City of New York.
His facility claim [020-242-03] concerning this fourth cause of action was denied because he was unable to furnish a certified mail receipt or other documentation that the item was properly designated as legal mail; and the certified mail number he referred to did not appear in any mail records. [See Exhibit A]. In the investigation of the facility claim it appears that the number was tracked through the United States Post Office as well and no record of such a number was found. [Ibid.]. Accordingly, when the facility claim was denied on April 21, 2004 it is indicated that “no negligence” was found on the part of the DOCS. [Ibid.].
The Court also notes that with regard to the mailings Claimant apparently received from the New York City Comptroller’s Office, that are attached to the Notice to Admit he served upon the Attorney General’s Office and marked therein as exhibits (e) and (f), the first memorandum acknowledges receipt on January 22, 2004 - even the most inefficient mail service would have gotten mail to its destination submitted almost one full month earlier - and also states that a lawsuit against the City of New York with regard to any claim against it must be brought within “one year and ninety days from the date of the occurrence.”
Claimant then appears to have sought clearer photocopies of envelopes in which he transmitted mail to the comptroller’s office, and makes reference to correspondence from the same office indicating it received his property claim on January 8, 2004, but then Claimant does not include a copy of the letter referred to. [See Exhibit 12]. The Court notes that Claimant submitted what appears to be a photocopy of part of the claim against the City of New York that is date stamped as received in January 2004, but where the actual day in January appears there is handwriting superimposed over whatever the stamp indicated originally. [See Exhibit 8].
Other evidence submitted by Claimant was also reviewed by this Court, and given what weight it merited. The other exhibits include Exhibit 2, which appeared to be a series of receipts from commissary purchases at the New York City Department of Correction from January 2003 through October 2003; the 2003 and 2006 commissary price list from Clinton Correctional Facility [Exhibit 4]; an inmate account statement for Claimant for the period June 1, 2006 through June 30, 2006 [Exhibit 6]; an internal memorandum from Inmate Accounts to the Inmate Records Coordinator at Downstate dated October 14, 2003 concerning surcharges imposed for Claimant on what he alleges is an incorrect indictment number [Exhibit 7]; a photocopy of Personal Property Law §§251, 253 and 257 pertinent to lost and found property claims [Exhibit 9]; a photocopy of United States Postal Service priority mail rates indicating that such rates were effective June 30, 2002 [Exhibit 10]; Inmate Account Statements for Claimant for the periods April 1, 2004 through April 30, 2004, November 1, 2003 through November 28, 2003, and October 1, 2003 through October 31, 2003 [Exhibit 11]; scattered pages of a document that appears to be a facility directive concerning mail dated September 7, 2001 and a photocopy of an article from a newspaper concerning the value of gold in May 2006 [Exhibit 13]; some original memoranda from Claimant to the correspondence unit/program, the business office and the inmate finance office dated in and around November and December 2003 and February 2004 as well as copies of authorized advance requests dated February 12, 2004; June 17, 2004, May 2004 and January 14, 2005 and other ephemera [Exhibit 14].
No other witnesses testified and no other evidence was submitted on Claimant’s direct case.
Despite the exhaustive efforts Claimant appears to have made to pursue this Claim against the State of New York, Claimant did not establish by a preponderance of the credible evidence all the elements necessary to the causes of action asserted in the claim. As an initial matter, Claimant did not present as a very credible witness, but rather appeared to “adjust” his testimony as the lengthy presentation evolved.
With regard to the first and second causes of action seeking recovery for property allegedly lost, not having pursued his administrative remedy in a timely fashion, seeking a remedy in the Court of Claims is also untimely. More substantively, Claimant did not establish exactly what items of property were last in his possession, and were delivered into State custody and control, and whether such items were indeed lost, and what their value was. While the State has a duty to secure an inmate’s personal property if it is left in its charge, [see Pollard v State of New York, 173 AD2d 906 (3d Dept 1991)], and nominally a delivery of property to the bailee, and the latter’s failure to return it, would satisfy Claimant’s burden of establishing a prima facie case of negligence, here the property left Defendant’s hands by mailing, and there is no indication that the property was lost before that, if indeed it was lost at all. No inventory forms regarding the property or other indicia of possession beyond the form directing the disposal on October 10, 2003, containing information that does not quite match the information contained in the Claim herein, were submitted to establish what exactly was delivered and how the State was negligent. Thus the Defendant’s motion to dismiss with regard to the first and second cause of action as untimely, and for substantive reasons as well, is granted in all respects.
With respect to the third cause of action concerning allegedly unauthorized withdrawal of funds for surcharges
, when Counsel for the Defendant brought up in the motion to dismiss this cause of action that a special proceeding brought in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules would be the vehicle to challenge such withdrawals
, Claimant then indicated for the first time that he did bring such a proceeding, and that he received refunds, and what he was looking for now was the cost of postage and copying. This cause of action, too, was not established, in that there was no showing that such withdrawals were indeed made in contravention of any law or in error, or that Claimant has not received a complete remedy by reimbursement he indicated (late) that he received.
Finally, with respect to Claimant’s fourth cause of action concerning alleged failures to follow regulations concerning the treatment of legal mail, and the resulting loss of his personal property claim against the City of New York, it also is not established. Although 7 NYCRR §721.3 provides that the cost of postage for legal mail will be advanced by the facility, the Court is not convinced that Claimant marked his correspondence accordingly, nor has he submitted any documentation that he submitted an advance request or that he was eligible to receive an advance or that regulations concerning review by counsel, for example, were not followed if indeed mail properly marked legal mail was returned. Moreover, at the time of the alleged attempts to mail the property claim, there is no indication that Claimant had a viable cause of action, or had used the appeal process relative to his criminal conviction - since he maintained that the seizure was part of a sentence agreement - which would have been the mechanism for challenging a violation of a plea agreement.
Accordingly, for all the foregoing reasons, Defendant’s motion to dismiss the claim, upon which decision was reserved at trial, is hereby granted, and Claim number 109495 is in all respects dismissed.
Let judgment be entered accordingly.

February 13, 2007
White Plains, New York

Judge of the Court of Claims

[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.
[2]. Perhaps Claimant meant to say that if the items are lost before the six (6) months are up, then DOCS charges for replacement.
[3]. The surcharges Claimant asserted were illegal in his filed Claim before this Court concerned disciplinary hearing surcharges as well as the crime victim and sex offender registration charges he spoke of during the trial.
[4]. The Court took judicial notice of the provisions of Penal Law §60.35 concerning DNA data bank and sex offender fees, and the provisions for review of the imposition of such fees.