New York State Court of Claims

New York State Court of Claims

SMYTHE v. THE STATE OF NEW YORK, #2007-030-546, Claim No. 112289, Motion No. M-73257


Inmate motion to compel discovery in bailment claim denied. No discovery demand ever served on Attorney General’s office. Information sought is not material and necessary; FOIL request pending with facility in any event

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:
July 18, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion to compel


1,2 Notice of Motion to Compel Discovery, Affidavit in Support of Motion to Compel Discovery by Francis Smythe, and attached papers

3,4 Filed Papers: Claim, Answer

No Opposition Filed

Francis Smythe alleges in his claim that while he was confined pursuant to disciplinary proceedings, defendant’s agents at Green Haven Correctional Facility [Green Haven] lost or damaged his property. Specifically he states that on January 27, 2005 his cell was searched and items were seized by correction officers. He was issued a contraband receipt and a misbehavior report for a keyboard case. Thereafter, he was sentenced to one hundred eighty (180) days in the special housing unit [SHU] as a disciplinary sentence after a Tier III Superintendent’s hearing, and was transferred to SHU on March 7, 2005. His remaining personal property was packed up at that time, including items stored in the hobby shop locker. Those latter items, included a keyboard, clock movements and parts, music box movements, assorted hardware, wood, glue, finishes, paints, pens, inks, brushes and stains. [Claim Number 112289 Pages 3 and 4].

After pursuing administrative appeals of the disciplinary finding, he alleges that it was directed that his property be returned to him. On June 1, 2005, he learned that the facility had completed its search for his property and could not locate it, and he was told to file an institutional claim pursuant to the inmate personal property claims remedy. All appeals of this remedy were denied on or about December 16, 2005 he avers.

The present claim was served on or about March 31, 2006, and filed in the office of the Chief Clerk of the Court of Claims on May 1, 2006. Claimant seeks total compensation in the amount of $2,098.14. The Answer was served on or about April 19, 2006, and filed in the Clerk’s Office on April 24, 2006.

Claimant now seeks an order compelling the inmate records offices at Clinton Correctional Facility and Green Haven to turn over documents and cassette tapes concerning his disciplinary hearing - held on February 2, 2005 and February 16, 2005 - sought pursuant to a Freedom of Information Law [FOIL] request to those departments. [See generally Public Officers Law §89]. It does not appear that a discovery demand in the context of this litigation was ever served on the Attorney General’s Office.

Moreover, according to the documents attached to the motion, on March 20, 2007 the FOIL Officer at Green Haven acknowledged receipt of claimant’s March 13, 2007 request. There does not appear to be any indication that the request was thereafter denied, and the present motion appears to have been drafted within days of the mere acknowledgment of his request.

Thus while Civil Practice Law and Rules §3101, setting forth the scope of disclosure in a civil case and applicable in the Court of Claims [see Court of Claims Act §9(9)], provides in pertinent part that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of any action, regardless of the burden of proof . . . ” given both the nature of the claim in this court and the FOIL process Mr. Smythe appears to be pursuing, there does not appear to be any relevance to the request material to this claim, or any necessity for motion practice.

This claim is one alleging negligence by the alleged bailee in a bailment created between Defendant and Claimant by delivery of Claimant’s personal property into the custody of Defendant’s employees. See generally Claflin v Meyer, 75 NY 260 (1878); Ahlers v State of New York, (Claim No. 82543, Corbett, P.J., December 23, 1991). 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 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, 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 (NY Dist. Ct., 1973). Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable.

As noted earlier, discovery of matter that is material and necessary is liberally allowed. Here, however, it is unclear how any of the information claimant seeks would serve to establish the limited bailment claim Mr. Smythe has filed in this Court.

Accordingly, Claimant’s motion to compel discovery is in all respects denied.

July 18, 2007
White Plains, New York

Judge of the Court of Claims