New York State Court of Claims

New York State Court of Claims

MABRY v. THE STATE OF NEW YORK, #2008-029-063, Claim No. 111484


Defendant liable for destruction of personal property by correction officer. Damages include $660 for replacement pages for partially-destroyed trial transcript.

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:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 16, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Bedford Hills Correctional Facility, seeks damages for property allegedly destroyed during a cell search on January 21, 2005. Claimant exhausted her available administrative remedies on August 10, 2005 (Exhibit A, p 7), and the claim was served and filed within 120 days of that date and is properly before the court.

Claimant testified that she left her cell at about 6:30 p.m. on the date in question to go to the law library and returned to her cell at about 8:50 p.m. She found her cell “totally destroyed,” with water all over the floor, a shirt stuffed in the toilet and papers, mostly from her criminal trial transcript, stuffed in the toilet and strewn around, some stained with urine and feces. [1] She cleaned up the cell, with the assistance of other inmates, and requested that the correction officer in charge call a sergeant, which was denied. The court viewed some of the papers – pages from her trial transcript that claimant alleged she needed to “pursue” her “criminal proceeding” – which claimant had dried out and preserved in a plastic bag, and agrees with claimant’s contention that the papers were “destroyed.” In addition to the papers, claimant alleges that some old magazines were destroyed as well as a lamp that she had bought five years earlier for $7.75 (Exhibit 3, permit dated October 25, 2000 for gooseneck lamp valued at $7.75).

Although claimant had been the subject of cell searches before, she stated that she had never seen anything like this one in her nine years in the system. She testified that she had had problems with this officer before and speculated that it “looked like revenge or something.”

In addition to pursuing her personal property claim remedy, claimant filed a grievance, which was denied based on the finding that “the officer conducted an appropriate cell search” (Exhibit 1, p 6).

Claimant called two other inmates who were witnesses to the cell search. Vanessa Santiago testified that as she walked from her cell, which was diagonally across from claimant’s cell, she saw C.O. Jackson in claimant’s cell with papers in his hand, breaking a clip that held the papers together. She also saw papers strewn everywhere around the cell and papers and clothing stuffed in the toilet, but did not notice if the floor was wet. Santiago indicated that this was not the normal condition of claimant’s cell; normally her papers were kept neatly in a black bag. She stood and watched for a few minutes until Jackson turned around, noticed her and told her to move on.

Inmate Sally Rodriguez stated that when she walked past claimant’s cell, it “looked like a storm hit it,” with clothes, papers and appliances all over the place. Clothing and papers were stuffed in the toilet and the floor was wet.

Defendant called Lt. Lawrence Hammond, who investigated the allegations made by claimant in her grievance and property claim (see Exhibit A). He advised that C.O. Jackson, who he stated was no longer employed by the State, gave a statement in which he denied claimant’s allegations that he damaged her property (see Exhibit A, p 27). Hammond concluded that he could not establish whether Jackson had or had not damaged any of claimant’s property and that he could not prove that the cell search had been done improperly. Asked directly if the search was properly done, he replied “I had no evidence to prove it was not done properly.”

The court finds that the testimony of the three inmates who testified, supported by the physical evidence produced by claimant, was credible and that such testimony reflects what actually occurred in claimant’s cell on the date in question. While Lt. Hammond was also a credible and forthright witness, he was without personal knowledge of the events in question and he was very careful in precisely limiting his testimony based on such lack of knowledge. He stated that he “couldn’t find any proof” of malfeasance on the part of C.O. Jackson and that he “couldn’t prove” that Jackson had damaged any of claimant’s property. He quite intentionally never stated that he found that Jackson had acted properly or that Jackson had not damaged claimant’s property, only that he could not find, what was for him, sufficient proof of malfeasance. The totality of the evidence clearly supported claimant’s version of the events, and the court finds that defendant is liable for the damage to claimant’s property.
“There are alternative methods of making proof of damages sustained where personal property has been injured. A proper and simple method is to prove the amount of lessened market value or the difference in the value of the property immediately preceding and following the wrong. . . . An alternative method is the proof of reasonable value of the necessary repairs made to restore it as nearly as possible to its original condition. . . . Where the method of making proof of depreciation in value does not measure the loss or there is inconvenience in making proof, evidence of the fair cost of repairs made necessary by the injury, less the increased value of the repaired [property] above its value before the accident, may be adopted.”
Parilli v Brooklyn City Railroad
(236 App Div 577, 578 [2d Dept 1932]). See also Jenkins v Etlinger (55 NY2d 35 [1982]); Johnson v Scholz (276 App Div 163 [2d Dept 1949]).

Here, claimant testified as to damages to her criminal trial transcript, some magazines and a lamp. There was no competent proof upon which to base an award for damage to the magazines, so damages are limited to the pages of her transcript that claimant’s uncontradicted testimony established were destroyed and the lamp. Obviously, the pages from the trial transcript were of no use to anyone other than claimant and have no market value. However, claimant testified that she contacted the court reporter, Sheryl Fitzpatrick, and asked her the cost of replacing the 264 pages that were destroyed and Ms. Fitzpatrick responded with a letter stating that the cost would be $660.00 (Exhibit 2). Defendant objected to the exhibit on grounds of “authentication,” but did not challenge its contents or suggest that the letter was somehow fabricated or that the cost, which amounts to $2.50 per page, was exaggerated (cf. 22 NYCRR § 108.2 Rules of the Chief Administrator of the Courts, “Payment for Transcript”).

Although claimant, an incarcerated inmate proceeding pro se, produced neither the court reporter nor an expert witness to testify as to the replacement cost for the destroyed pages, and she did not testify that she had in fact replaced the pages (cf. CPLR 4533-a), the court finds that her testimony, buttressed by the challenged exhibit, is a sufficient predicate for an award of damages, particularly since the substance of that testimony was unchallenged by defendant (see, e.g., New York City Transit Auth. v Horner, 21 Misc 3d 1129[A] [Civil Court, Kings Co. 2008]; Thompson v Highgate Taxi Corp., 1990 WL 31654 [E.D.N.Y., 1990]; Glazer v Quittman, 84 Misc 2d 561 [Justice Court, Village of Scarsdale 1975]).

As to the lamp, there was no dispute that claimant purchased it for $7.75 about five years before it was destroyed by Officer Jackson. (Exhibit 3). The court finds that the depreciated fair market value of the lamp on January 21, 2005 was $5.00.

Accordingly, the Clerk of the Court is directed to enter judgment in claimant’s favor in the sum of $665.00, together with interest at the statutory rate from January 21, 2005, along with any filing fee actually paid.

January 16, 2009
White Plains, New York
Judge of the Court of Claims

[1].Unless otherwise indicated, all quotations are from the court’s trial notes.