New York State Court of Claims

New York State Court of Claims

LINARES v. STATE OF NEW YORK, #2008-018-635, Claim No. 114935, Motion No. M-74852


Questions raised by claimant’s own submissions fail to entitle him to summary judgment. Claimant’s motion is DENIED.

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
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings a motion for summary judgment pursuant to CPLR 3212. Defendant

opposes the motion.

The claim was filed March 5, 2008, and seeks damages for the loss of claimant’s personal property, specifically a wooden radio, while he was an inmate at Riverview Correctional Facility. The defendant interposed an answer to the claim and raised one affirmative defense of failure to exhaust administrative remedies pursuant to Court of Claims Act § 10(9). Defendant, in response to this motion, has withdrawn that affirmative defense.

Claimant alleges in the claim and by this motion that his radio was wrongfully confiscated as contraband by Correction Officer Tucker during a cube search on November 17, 2007. Claimant asserts that the radio was taken in retaliation because claimant had been elected as a grievance representative and had filed a grievance against two staff members.

From claimant’s submissions,[1] it appears that a memorandum was issued on March 23, 2005, from the Deputy Commissioner for the Department of Correctional Services advising of a policy change which would require that “...all radios, tape players, radio/tape player combinations and typewriters offered for sale in the commissary or received in the package room must have clear cases.”[2] The memorandum goes on to state that “[i]nmates who now legitimately possess the above-mentioned electronic devices that do not have clear cases will be allowed to keep them. However, those inmates will not be allowed to transfer ownership to any other inmate upon transfer or discharge. As in the past, any altered electronic item will be confiscated.” [3] The inmates at Auburn Correctional Facility were advised of the Deputy Commissioner’s policy on March 29, 2005. The policy went into effect on April 8, 2005. Claimant’s radio was wooden, in new condition, and unaltered. Claimant argues that at the time he entered Riverview Correctional Facility he was issued a permit for the radio. Claimant has attached, as Exhibit E, copies of two “Local Permit[s].” One dated September 21, 2006 permitting an AM/FM Radio with the make of “TIVOLI Audio.” The second local permit is dated September 25, 2006, described as a Panasonic “AM/FM Cassette.” Both permits approve the items for use in the dorms.

Claimant also attaches to his motion copies of a decision on a grievance he filed with the facility (facility claim number 570-0046-07) for the loss of his radio. The initial decision dated December 24, 2007, disapproved his grievance and reflects that “[i]nmates are not allowed wooden items at this facility.”[4] Claimant appealed that decision, which was disapproved on January 3, 2008, and states: “Contraband item (radio) properly disposed of inmate refused to make a decision i.e. donate, destroy or send home. Acting Deputy Superintendent for Security correctly determined the disposition of contraband item (radio).”[5] As part of Exhibit J, claimant has attached copies of the grievance that he filed on December 5, 2007, and a copy of a determination of the Superintendent of the Riverview Correctional Facility dated December 31, 2007, affirming the decision of the Inmate Grievance Resolution Committee (IGRC) as follows:

The wooden radio which is the subject of this grievance could not be located.
The grievant was advised to file a claim, which he did (#570-0046-07). On 12/24/07, this claim was disapproved, on the basis that the grievant was
found to be in possession of two audio units during a search conducted on 11/17/07. One unit, the wooden radio, was appropriately confiscated. The grievant was given the option to donate, destroy or send the item home at his expense. He refused all options. Request to have this radio returned is denied.”

A copy of the determination from the Central Office Review Committee, dated March 19, 2008 is also attached to claimant’s documents.[6] The determination provides that after a full hearing, the decision of the Superintendent was upheld on November 17, 2007. “ The grievant was found to be in possession of two radios during an authorized frisk of his cube. The frisking officer confiscated one of the radios and issued the grievant a contraband slip. Subsequently the grievant was given an opportunity to dispose of the radio, however the radio was lost.” Claimant was advised of his right to appeal a denied claim in accordance with Directive 2733, Inmate Personal Property Claim, Section IIB.

On a summary judgment motion, it is the burden of the party who brings the motion to establish their entitlement to judgment on the merits as a matter of law (see Winegrad, 64 NY2d at 851, 853; Zuckerman, 49 NY2d at 557, 562). Only then does the burden shift to the defendant to come forward with proof to show a genuine question of fact exists (Oswald v City of Niagara Falls, 13 AD3d 1155). The failure of the proponent to make a prima facie showing of the right to summary judgment requires denial of the motion regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853; Gstalder v State of New York, 240 AD2d 541, 542; Matter of Redemption Church of Christ of Apostolic Faith, Inc. v Williams, 84 AD2d 648, 649).

To establish a prima facie case for bailment claimant must establish that defendant took possession of claimant’s property by delivery, or in this case seizure, and failed upon request to return it to claimant (see generally Claflin v Meyer, 75 NY 260). Yet, if the property of which defendant took possession was property to which claimant was not entitled, as it was considered contraband within the prison setting, there is a question of whether claimant would be entitled to compensation for its loss (see Ramsey v State of New York, Ct Cl, Scuccimarra, J., signed April 30, 2007, Cl No. 109141, UID #2007-030-011; Patterson v State of New York, Ct Cl, Mignano, J., signed September 26, 2000, Cl No. 94538, UID #2000-029-020; Barrett v State of New York, Ct Cl, Read, P.J., signed June 30, 2000, Cl No. None, Motion No. M-60959, UID #2000-001-036).

Here, claimant has established that his wooden radio was confiscated by prison officials. However, claimant has not established as a matter of law that the radio was wrongly confiscated, or was improperly disposed of thereafter. There are questions of fact as to whether claimant had a permit for the radio which allowed him to possess it, and whether possession of two radios was contraband. The description of items considered contraband as defined in the Code of Rules and Regulations includes: “113.23 [i]n addition to those items of contraband specifically identified by this rule series, an inmate shall not possess any item unless it has been specifically authorized by the superintendent or designee, the rules of the department or the local rules of the facility.”

(7 NYCRR 270.2 B[14][xiii]). If the radio was properly confiscated, there are questions of whether claimant was given the opportunity to dispose of the radio and refused the offered disposal options, or whether claimant is entitled to compensation for the lost radio if it is contraband. These questions are raised by claimant’s own submissions and fail to entitle him to summary judgment.

Accordingly, claimant’s motion is denied.

September 5, 2008
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

  1. Affidavit of Jorge L. Linares sworn to April 15, 2008, in support, with exhibits attached thereto.
3. Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney General, in opposition.

4. Reply to Defendant’s Response, affidavit of Jorge L. Linares, sworn to May 6, 2008, in support, with exhibit attached thereto.

[1]. Claimant’s exhibits are not in admissible form for purposes of a summary judgment motion (Zuckerman v City of New York, 49 NY2d 557, 562; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Alvarez v Prospect Hospital, 68 NY2d 320, 324). Although claimant’s pro se status does not relieve him of the obligation to provide competent documentation, the Court has reviewed the documents (see Duffen v State of New York, 245 AD2d 653; Moore v Co. of Rensselaer, 156 AD2d 784).
[2]. Exhibit G of claimant’s motion documents.
[3]. Exhibit G of claimant’s motion.
[4]. Exhibit H of claimant’s motion.
[5].Exhibit H of claimant’s motion.
[6]. Exhibit J.