New York State Court of Claims

New York State Court of Claims

ALVAREZ v. THE STATE OF NEW YORK, #2007-030-037, Claim No. 109638


Synopsis


Inmate bailment claim dismissed. Claimant has not established that he is the owner, that there was delivery or possession, value, or even what was lost, despite the voluminous submission which primarily contains his own correspondence and does not entirely dovetail with the items noted in the claim. What claimant is effectively seeking are damages due to what claimant views as the inefficient application of the media review committee’s function. These are administrative functions, subject to review in an Article 78 proceeding, and are not within the jurisdiction of this court. Pursuant to facility Directive 4572, the media review committee reviews materials entering the facility to determine whether they incite violence, or contain unacceptable child pornography or depiction of any acts that are obscene, among other things. There are procedural guidelines for how the committee should approach its task, including notice to the inmate that the item is under review, and further notice that the item has been redacted or withheld entirely, and additional options for the inmate concerning dissemination of the material, including forwarding the material elsewhere. While the treatment of the materials may have been inconsistent, state not liable under these facts.

Case Information

UID:
2007-030-037
Claimant(s):
NELSON ALVAREZ
Claimant short name:
ALVAREZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109638
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
NELSON ALVAREZ, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 16, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Nelson Alvarez alleges in his claim, filed on July 21, 2004, that defendant’s agents negligently or intentionally lost or damaged his property while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven). Trial of the matter was held on May 11, 2007.


Claimant testified that he has been having problems receiving magazine materials “since 2001.” According to Directive 4572, Claimant said, “he is to get notification that materials received by the facility are being referred to the media review committee for inspection. Media review has 10 days to render a decision. They decide whether the materials are a problem in terms of escape materials, child pornography, or sadomasochism”[1] and the like. The media review committee is required to advise the inmate what part of the magazine does not pass review and why - they cannot simply ban the entire magazine, he said. The inmate is entitled to “receive an explanation”, and can appeal. When the explanation is formally provided in writing, options on how to proceed are given, including the right to appeal, and directions to “ship out”, or destroy the materials. The inmate “can take the magazine with the pages removed.”

Claimant said the committee has “taken as long as 3 months to review materials and there have been 17 instances where they did not do what they were supposed to do.” He has “not been getting notice that magazines are received and gone to review,” and has not had hearings. He stated this was an “ongoing problem, going as far back as 2001.”

In terms of damages, he asked for $148.51. This figure was arrived at by assessing what publications were destroyed or never received. Mr. Alvarez described the publications to the court generally as “adult publications.” Additionally, Mr. Alvarez was seeking redress for the administrative failures he perceives in the process - or lack of process - used by the facility media review committee. In that connection, he seeks injunctive relief asking that the court direct the facility media review committee to comply with Directive 4572.

Attached to his filed claim, are copies of facility claims that more specifically delineate exactly which publications are claimed to be missing or destroyed. In further support of his claim, Mr. Alvarez submitted a voluminous exhibit organized sequentially showing his efforts to obtain information and to pursue grievances. [Exhibit 1]. This submission also contains, however, items that relate to Mr. Alvarez’ efforts to show the history of his problems with obtaining magazines and, as conceded in his written claim and voiced to some extent in his testimony, the items are not part of his “actual claim.” Indeed, in some instances the documents attest to his already having been offered monetary compensation for alleged loss.

As far as the court can discern from the filed claim, the testimony, and Exhibit 1, claimant seeks monetary recovery for the following magazines:

Cheri ($8.99 each: October 2003; November 2003)

High Society ($7.99 each; Holiday 2003; December 2003).

Claimant asserts that the October 2003 issue of Cheri, and the December 2003 issue of High Society were delivered with pages deleted, the November 2003 issue of Cheri, and the Holiday 2003 issue of High Society were disposed of without authorization. In support of these contentions, he supplied copies of some of the facility claims and responses, and some correspondence. There is no showing that any of these items were paid for by him, and in at least one instance there is an offer of compensation.

He seeks “symbolic recovery” for an institutional claim filed in August 2002, he was “propositioned into abandoning,” and “nominal damages” of $24.10. [Claim Number 109638, ¶70].

No other witnesses testified and no other evidence was submitted.

Pursuant to facility Directive 4572, the media review committee reviews materials entering the facility to determine whether they incite violence, or contain unacceptable child pornography or depiction of any acts that are obscene, among other things. There are procedural guidelines for how the committee should approach its task, including notice to the inmate that the item is under review, and further notice that the item has been redacted or withheld entirely, and additional options for the inmate concerning dissemination of the material, including forwarding the material elsewhere.

While claimant may be correct that there has been very inconsistent treatment of materials received by the facility, he has nonetheless not established that the State should be held liable in damages

As a claim alleging negligence by the alleged bailee in an alleged bailment created between Defendant and Claimant by delivery of Claimant’s personal property into the custody of Defendant’s employees, the claim is not made out. See generally Claflin v Meyer, 75 NY 260 (1878); Ahlers v State of New York, (Claim No. 82543, Corbett, P.J., December 23, 1991). Certainly, the State has a duty to secure an inmate’s personal property. Pollard v State of New York, 173 AD2d 906 (3d Dept 1991). A delivery of property to the bailee, and the latter’s failure to return it, satisfies a claimant’s burden of establishing a prima facie case of negligence. The bailee is then required to come forward with evidence to “overcome the presumption.” Weinberg v D-M Rest. Corp., 60 AD2d 550 (1st Dept 1977). “Where a bailment is created, a showing that the . . . [property was] delivered to the bailee and returned in a damaged condition establishes a prima facie case of negligence and the burden shifts to the bailee to demonstrate that it exercised ordinary care . . . (citation omitted)” Board of Educ. of Ellenville Cent. School v Herb’s Dodge Sales & Serv., 79 AD2d 1049, 1050 (3d Dept 1981).

With respect to value, a claimant must satisfy the court of the fair market value of the items in question. Phillips v Catania, 155 AD2d 866 (4th Dept 1989); Schaffner v Pierce, 75 Misc 2d 21 (New York Dist. Ct. 1973). Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may suffice.

In this case, however, Claimant has not satisfied the burden of establishing that he is an owner, that there was delivery or possession, value, or even the specifics of the alleged losses despite the voluminous submission [see Exhibit 1] which, as noted above, primarily contains his own correspondence and does not entirely dovetail with the items noted in the claim. Additionally, and as argued by defendant, what claimant is effectively seeking are damages due to what claimant views as the inefficient application of the media review committee’s function. These are administrative functions, subject to review in an Article 78 proceeding, and are not within the jurisdiction of this court. See Court of Claims Act §9; Civil Practice Law and Rules §7801 et seq.

Accordingly, and after carefully considering the evidence presented, including the testimony of Claimant and observing his demeanor as he did so, the Court finds claimant has failed to establish a prima facie case, and Defendant’s motion to dismiss, upon which decision was reserved at trial is hereby granted, and Claim number 109638 is in all respects dismissed.

Let judgment be entered accordingly.



August 16, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.