New York State Court of Claims

New York State Court of Claims

TABARES, JR. V. THE STATE OF NEW YORK, #2008-038-113, Claim No. 108104


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

Signature date:
April 15, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at a State correctional facility, filed this claim seeking damages for jewelry that was allegedly lost or stolen after it was confiscated by defendant as contraband at Upstate Correctional Facility (CF). The trial of the claim was conducted by videoconference on February 13, 2008, with the parties appearing at Clinton Correctional Facility in Dannemora, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony, and the claim and its appended documents (21 pages in toto) were received into evidence as Claimant’s Exhibit 1. Defendant offered the testimony of New York State Department of Correctional Services (DOCS) Hearing Officer (HO) Steven Bullis, and 9 pages of documents were received into evidence as Defendant’s Exhibit A. The claim alleges that after claimant’s gold chain, cross, and wedding ring were confiscated, they were not destroyed in accordance with DOCS directives, but were stolen by defendant’s employees. At the close of claimant’s case, defendant moved to dismiss the claim for claimant’s failure to prove that he owned the jewelry at issue. The Court reserved its decision on that motion, and upon consideration of claimant’s testimony, including evaluation of his demeanor, and upon further consideration of Claimant’s Exhibit 1, the Court now finds that claimant has failed to prove his ownership of the jewelry, and has therefore failed to establish a prima facie case of negligent bailment.

An inmate may assert a negligence claim against the State sounding in bailment, as the State has a common law duty to secure the property of inmates within the State’s prison system (see Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). To establish a prima facie claim of bailment, however, the inmate claimant must demonstrate his or her ownership of the property (see Mack v State of New York, UID # 2004-030-045, Claim Nos. 106061, 106061-A, Scuccimarra, J. [Dec. 22, 2004]; see also Gagne v State of New York, UID # 2006-044-005, Claim No. 109626, Schaewe, J. [Dec. 19, 2006]).

On April 23, 2003, claimant was the subject of two Inmate Misbehavior Reports. The first Misbehavior Report, written by Correction Officer (CO) Thompson, alleged various acts of misbehavior by claimant in his cell (Defendant’s Exhibit A, at 4). The second, written by DOCS Sergeant J. Coffey, asserted a charge of “unauthorized jewelry,” based upon Sgt. Coffey’s observation of claimant wearing a gold chain with a religious cross pendant and a wedding band that Sgt. Coffey had never seen claimant wearing before. Claimant did not adequately respond to Sgt. Coffey’s inquiries about the jewelry, and since those items of jewelry were not listed in claimant’s personal property inventory forms, Sgt. Coffey confiscated the jewelry (id. at 5).

A hearing on the two Inmate Misbehavior Reports was conducted by HO Bullis on April 29, 2003. Claimant did not attend the hearing, and CO Griffith testified at the hearing that claimant refused to attend the hearing “knowing it would be held in his absence and that he had no documents or witnesses to present” (id., at 3). Bullis testified at trial that claimant’s ownership of the jewelry could have been established at the hearing by claimant’s testimony or by his submission of receipts, but since claimant did not attend or offer any testimony or documentary evidence, ownership of the jewelry was not proven. Claimant was found guilty of unauthorized jewelry in absentia. In accordance with Upstate CF procedures, HO Bullis requested permission from Deputy Superintendent for Security (DSS) D. LaClair for the removal and disposition of the contraband chain, cross and ring, and on April 29, 2003, DSS LaClair approved destruction of the jewelry, as claimant had not established ownership of it (id., at 6).[1] Claimant testified at trial that he wrote a letter to Upstate CF First Deputy Superintendent John Donelli dated April 27, 2003 requesting the return of the jewelry (Claimant’s Exhibit 1, at 8), and that he wrote a letter to DSS LaClair on May 5, 2003 seeking to have the jewelry either returned to him or shipped to his home at his own expense (id. at 9). Nevertheless, at some undetermined time, the jewelry was destroyed by the Office of the Deputy Superintendent for Security. The claim demands $3,550.00 for the value of the jewelry.

The Court finds that claimant did not establish ownership of the jewelry because, even though he testified that he owned it and submitted receipts into evidence, he was not a credible witness and the receipts he submitted were not credible evidence of his ownership of the items in question.

First, the purported receipts for purchase of the jewelry (Claimant’s Exhibit 1, at 16) are not credible because they are dated in late March 2003, just a few weeks before the confiscation of the jewelry, even though claimant asserted in his letter to Mr. Donelli that he had possessed these items at Fishkill CF in 1996 (see Claimant’s Exhibit 1, at 8). Moreover, the receipts are in the name of William Gladstone, and therefore do not establish that claimant owned these pieces of jewelry. Although claimant testified that Gladstone is his godfather, claimant offered no evidence to explain why the receipts are in Gladstone’s name or how claimant came to be in possession of the jewelry. Accordingly, the veracity of these receipts as proof of claimant’s ownership is highly suspect, and the Court accords them no weight.

Although ownership may yet have been established by claimant’s testimony, the Court finds that claimant was not a credible witness. Claimant’s submission of the highly questionable receipts to prove his ownership of the jewelry negatively reflects on his credibility, and his credibility is further undermined by palpable inconsistencies in his trial testimony regarding his failure to attend the hearing on the Misbehavior Reports. Claimant initially testified during direct examination at trial that he did not attend the disciplinary hearing because he “just didn’t make it,”[2] and that he believed that he was not required to attend. Yet he later testified under cross-examination that he was “not allowed” to go to the hearing, and that when CO Griffith came to take him to the hearing, claimant asked for “five minutes” to get ready but when he was ready no one returned to escort him to the hearing. Claimant further testified that he would have been unable to prove ownership at the hearing because he did not have the receipts for the jewelry at the time of the hearing. These conflicting accounts as for his reason for not attending the hearing cast doubt on the veracity of his testimony as a whole, and the Court therefore accords it no weight.

In sum, the Court finds that claimant has not demonstrated his ownership of the three pieces of jewelry that were destroyed by defendant, and thus, he has failed to prove a prima facie case of negligent bailment. Accordingly, defendant’s motion to dismiss the claim must be GRANTED. Any motions not previously ruled upon are hereby DENIED. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.

Let judgment be entered accordingly.

April 15, 2008
Albany, New York

Judge of the Court of Claims

[1].DOCS Directive 4910, governing the search and control of items seized as contraband provides in pertinent part that “[u]nauthorized articles, when appropriate, will be turned over for shipment home . . . or stored with the remainder of the inmate’s personal property, or destroyed (DOCS Directive 4910, VI [D][5][c]). That Directive further provides that the “Deputy Superintendent for Security, or higher, can authorize the destruction of confiscated article(s) . . . Destruction will be used as the least preferred option” (DOCS Directive 4910, VI [D][6]).
[2].Quotations are to the Court’s trial notes or the digital audio recording of the trial.