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
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
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.