New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2008-013-516, Claim No. 107887


An award of $81.00 is made to Claimant because Defendant failed to comply with proper disposal procedures when it destroyed an item of Claimant’s personal property.

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:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 8, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim was filed on June 16, 2003, and sounds in bailment. The underlying cause of action here alleges the loss-destruction of an item of Claimant’s personal property, to wit, a Caliphone tape player valued at $81.00. It appears that during a search of Claimant’s cell at Wende Correctional Facility (Wende) on January 16, 2003, the said tape player was removed from Claimant’s cell and was discovered to have been used to secrete certain weapons inside. Disciplinary proceedings were conducted, Claimant was found guilty of possession of contraband (weapons) and the tape player was ultimately disposed of by officials of the Department of Correctional Services (DOCS) at Wende. This claim alleges the Defendant’s destruction thereof did not comply with certain directives/procedures in place for such circumstances. I have previously denied Defendant’s motion for summary judgment (Motion No. M-75208, Decision and Order dated July 24, 2008), finding that there existed material questions of fact that needed to be resolved at trial.

It is unnecessary to revisit the disciplinary hearing and the findings with respect to Claimant and with respect to the finding of guilt for possession of contraband and the discipline imposed, other than to note that Claimant contended that said weapons were planted in the tape player without his knowledge. Regardless, I proceed to review only the allegations as they pertain to the tape player.

Claimant testified that there never was any alteration of the tape player, and indeed he alleges, without refute, that he was never charged with or found guilty of possession of an altered item. Accordingly, he argues that the destruction/disposition of an inmate’s personal property is governed by DOCS regulations, which regulations were not observed by the Defendant, and thus the Defendant is answerable in damages to Claimant for the unauthorized disposal/destruction of his personal property.

The Inmate Orientation Manual for Attica Correctional Facility (Sections 12.7 [a] and [b]) directs that as to personal property for which permits are mandatory, such as a tape player, the inmate is required to remove the permit from his file in the package room when he no longer possesses that item, because an inmate is only allowed to possess one such item. Indeed, the manual was produced at trial, but had to be returned to Attica, so I read the relevant sections, at page 51, into the record at 10:49:00 on the day of trial. That rule required the inmate to personally bring the item in question to the package room to allow for its removal and/or replacement, including all parts thereof. A blank form utilized for the authorization for disposal of personal property was admitted as Exhibit 5. That procedure was admittedly not followed, and the Defendant contends that the disposal of the tape player was done because it was contraband itself, because it had been altered, and therefore was properly destroyed.

Whether Claimant’s theory rests upon a technical failure to have specifically charged him with an altered, and thus contraband, tape player, or to failure to allow him to authorize the disposal of his personal property and to remove the permit, it appears that the Defendant failed to follow its own rules when it destroyed the tape player.

DOCS Directive No. 4910 (Exhibit 2) addresses the recording or logging of alleged contraband on Misbehavior Report Forms #2171.A and #2171.B (Exhibit 2 - p. 14), and the disposition of contraband is addressed relevantly on Exhibits 1 and 2, page 15:

Articles confiscated as potential evidence in disciplin-ary proceedings.... shall be disposed of as directed by the hearing officer at the conclusion of the proceedings.

My review of the transcript of the Tier III hearing regarding this incident (Exhibit H to Defendant’s summary judgment motion papers in Motion No. M-75208) reveals that Claimant was never charged with possessing an altered item of personal property[1] and was therefore never found guilty of possessing an altered item of personal property, that there is no testimony regarding the alteration of said tape player, and finally there is no finding or direction from the hearing officer, CHO T. Schoellkopf, regarding the disposition of the tape player, albeit finding Claimant guilty of the possession of contraband, to wit, the nine weapons contained within the tape player.

Captain Martin Kearney from Wende testified with respect to the alleged alteration of the tape player. He drew his conclusion that it had been altered from observing the photographs of the weapons and the tape player (Exhibit B), and that they would not have fit inside without alteration. He acknowledged never having personally viewed the tape player. He also referenced a memo from Sergeant Lauricella, dated May 15, 2003, with respect to Claimant’s institutional claim, that described the tape player’s alteration which he had observed during the January 16, 2003 cell frisk (Exhibit C). Claimant noted that this memo, raising the alteration of the tape player, was only created in response to his institutional claim, some two months after the event. I note that Captain Kearney’s memo to the Wende Business Office dated May 19, 2003, part of Exhibit C, references that the tape player was altered and was disposed of accordingly. Captain Kearney described the tape player as being contraband itself and thus susceptible to destruction.

Defendant also referenced a provision of Directive 4910 (¶ 6, p. 15 of Exhibits 1 and 2) which allows the destruction, by the Deputy Superintendent for Security or higher, of confiscated articles. Captain Kearney allowed that he was not directly given an order by the Deputy Superintendent to destroy this particular item, but he testified that procedures at Wende called for a confiscated item to be destroyed 30 days after a hearing. Testimony also addressed a provision of Directive 4910 (¶ 5[c], p. 15 of Exhibits 1 and 2), which reads in relevant part that

Unauthorized articles, when appropriate, will be turned over for shipment home (using Form #2068, ‘Authorization for Disposal of Personal Property’), or stored with the remainder of the inmate’s personal property or destroyed [emphasis supplied].

Captain Kearney asserted that this provision of the rules was not observed and did not apply because the altered tape player fell into a category of not being appropriate. He also suggested that since the more serious charges were for possession of weapons, Claimant was not charged with the alteration of the tape player, although he allowed that he should have been so charged.

It appears to me that the rules were not fully followed, and while the tape player may very well have been altered to allow the weapons to be secreted, Claimant was not charged with the same, and proper disposal procedures were not followed. Claimant has exhausted his administrative remedies (Court of Claims Act §10[9]) and seeks recompense for the value of the lost property. Initially, I find that Claimant has established the elements of a bailment, to wit, that the item of personal property was in the hands of DOCS; that the missing item was not returned to Claimant and that the Defendant destroyed the property. The Defendant was the bailee of the tape player and Claimant has made out a prima facie claim. The loss here occurred through the negligence of the Defendant. I find that Claimant is entitled to recover damages for the loss of the tape player.

Claimant has established that the Caliphone tape player in question was purchased at a cost of $81.00 on January 16, 2001 (Exhibit C), some two years prior to its destruction, but testified, without dispute, that the item was in storage for 1½ years while he was in the Special Housing Unit (SHU), and asserts that it will cost him $81.00 to replace the destroyed item. I note that Exhibit B, in addition to showing the weapons, contains a photograph of the tape player opened, allowing a visualization of the item in question. I find that he is entitled to the full value of the improperly destroyed Caliphone tape player, a total of $81.00, plus interest from the date of its confiscation on January 16, 2003.

It is ordered that to the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2). All motions not heretofore ruled upon are now denied.


December 8, 2008
Rochester, New York

Judge of the Court of Claims

  1. [1]Of course, Claimant disputes that the tape player was ever altered. He also noted that Standards of Inmate Behavior Rules 113.11 and 116.11 address altered items, and he was not charged with violating either of these rules.