New York State Court of Claims

New York State Court of Claims
McIVER v. THE STATE OF NEW YORK, # 2009-016-066, Claim No. 110890

Synopsis

Case information

UID: 2009-016-066
Claimant(s): DEREK McIVER
Claimant short name: McIVER
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 110890
Motion number(s):
Cross-motion number(s):
Judge: Alan C. Marin
Claimant's attorney: Derek McIver, Pro Se
Defendant's attorney: Andrew M. Cuomo, Attorney General
By: Roberto Barbosa, AAG
Third-party defendant's attorney:
Signature date: December 2, 2009
City: New York
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

This decision follows the trial of the claim of Derek McIver for lost and damaged property which occurred when he was transferred from Woodbourne Correctional Facility to Lakeview Correctional Facility or about August 3, 2004, and then to Livingston Correctional Facility on October 7, 2004. According to the claim, defendant made an offer of $94 for a damaged typewriter, which he accepted, but he declined an offer or offers which were made with respect to some of his missing property.(1)

McIver's claimed missing property includes among other things, his social security card and birth certificate, certificates from various courses he took while incarcerated, art supplies and books.

* * *

McIver testified that after he was transferred from Woodbourne to Lakeview, he received his property and saw that his typewriter had been damaged and that other items of his personal property were missing. He reported this to a correction officer and made facility claims. Claimant testified that at Livingston, a counselor told him that he was required to enroll in a number of courses. McIver told the counselor that he had already taken the courses, at which point he realized that his certificates for same were missing. Claimant recalled that he asked if he could get replacements, but was told that he could not, although he conceded that he was told that the Department of Correctional Services would acknowledge that he had completed the courses.

McIver indicated that he wanted the certificates so that he would have something to prove that he had taken the courses when he went before the Department of Parole, or when he went home. He also said that he wanted to take an advanced course with the Department of Labor, which required as a prerequisite a course for which his certificate was missing, and that by the time the matter was resolved, the Department of Labor was no longer offering the course.

On cross-examination, claimant conceded that he had received replacements for his birth certificate and social security card. The remaining missing documents in McIver's claim are listed as follows:

DOL Counselor Aide I Certificate and Business Card

Dept. of Education Gen. Business Certificate

Aggression Replacement Training Certificate

PFM Sexual healing Certificate

PFM Foundational Bible KP Certificate

AVP I Certificate

AVP II Certificate

Subexhibit A1 of claimant's exhibit 2(2) is a memorandum to claimant from Marilyn Bridge, the "Institution Steward" at Livingston Correctional Facility. With regard to the lost certificates, Ms. Bridges states that "it appears that DOCS did lose some items that were stored in your personal property . . . However, I can find no record that many of the items you are claiming as missing were ever held by Inmate Records in your personal property."

With regard to the Department of Labor Counselor's Aide certificate, Ms. Bridge states that, "I could find no proof that this document was ever in your personal property; however, I was able to obtain a copy of this certificate from your Guidance folder . . . our Vocational Supervisor . . . will attempt to obtain an original certificate from the Department of Labor. If he is unable to do so, there will be no further action . . . since there is no proof that the original was in your personal property." It should be noted that subexhibit A11 of claimant's exhibit 2 is a copy of an apprenticeship agreement with claimant regarding the counselor aide program, and subexhibit A12 is a copy of the certificate itself.

As to the Department of Education General Business certificate, Ms. Bridge states that there was no proof that the item was ever in claimant's personal property. Page 2 of subexhibit A9 of claimant's exhibit 2 does indicate that McIver had "deposited" certain items at Woodbourne Correctional Facility, and on the list is "1-Ed Cert . . . 12/22/99," but it is unclear whether this is the certificate listed in McIver's claim.

With regard to the Aggression Replacement Training certificate, Ms. Bridge states that "[a]lthough there is proof that this certificate was in your personal property, I could not locate a copy of it in your Guidance folder. I was, however, able to find a copy of your final evaluation showing completion of this course. According to counseling staff that I spoke with, this is sufficient to prove completion of the program and I have attached a copy of this document for

your records. As for the certificate itself, I have approved payment to you for this certificate in the amount of $1.00." It should be noted that subexhibit A6 of claimant's exhibit 2 consists of a copy of the Aggression Replacement Training Program Evaluation form, which indicates that claimant had completed the course.

As to the sexual healing certificate, Ms. Bridge states that there was proof that claimant had it in his personal property and that, "I have located a copy of this certificate in your Guidance folder and will have it added to your personal property if you request that I do so. As for the original certificate, I have approved payment to you for this certificate in the amount of $1.00." Subexhibit A26 of claimant's exhibit 2 is a copy of the certificate.

As to the Bible Knowledge certificate, Ms. Bridge states that, "[t]here is no proof that this document was ever held in the Inmate Records office or that the State was liable for its loss."

As to the AVP I certificate, Ms. Bridge states that, "[t]here is no proof that this document was ever held in the Inmate Records office . . . I was, however, able to obtain a copy of this certificate from your Guidance folder and will have it placed in your personal property if you request that I do so."

Finally, as to the AVP II certificate, Ms. Bridge states that, "[t]here is no proof that this document was ever held in the Inmate Records office . . . Also, I could not locate a copy of this certificate in your Guidance folder."

In view of the foregoing, I cannot find that claimant is entitled to damages for the loss of his original certificates. To the extent they could be located, copies were provided to claimant and he conceded that he was told that in any event, the State would acknowledge that he had taken the courses. As to his claim that he could not take a Department of Labor course because it was no longer being offered, he failed to adequately develop such claim or to otherwise offer evidence that would warrant an award of damages.

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With regard to items other than documents and certificates, Ms. Bridge's memo also covers two other items sought in McIver's claim, "two stamped envelopes" and a "religious pin." Ms. Bridge states that she could find no record "that these items were ever held in your personal property." However subexhibit A9 of claimant's exhibit 2, the aforementioned Woodbourne Correctional Facility document listing property "deposited" by claimant, contains the following entries: "7/28/00 . . . stamped envelope . . . 9-1-00 . . . pin . . . 11/30/00 . . . stamped envelope . . ." Claimant values the envelopes and the pin together at $12.63.

The property listed in the claim also includes "Hammermill Copy Plus 500 Sheets Paper" and "3 rolls of masking tape." With regard to these two items, subexhibit A12 of claimant's exhibit 2 is an "Authorization for Disposal of Personal Property" relating to copy paper and masking tape. It is unclear from such document whether the paper and tape were destroyed and if so, whether this is because claimant was not allowed to have them; no other evidence thereon was presented.

With regard to "Sakura Pigma pens," which claimant values at $11.99, subexhibit A20 of claimant's exhibit 2 is a receipt showing the purchase of same for $11.99.

With regard to "2 refill Tuff eraser sticks," which claimant values at $1.19, subexhibit A21 of claimant's exhibit 2 is a receipt showing purchase by McIver of such items for $1.09.

As to "C-Thur Junior T-Square," which claimant values at $1.99, subexhibit A22 of claimant's exhibit 2 is a receipt indicating purchase of a T-square for $3.36.

As to the "Ant comic book #2," which claimant values at $2.95, subexhibit A29 of claimant's exhibit 2 indicates that it was ordered for $2.95, which is what claimant values it at.

With regard to "Avengers: The Ultron Imperative Tradeback Novel," which claimant values at $5.99, subexhibit A29 of claimant's exhibit 2 shows its purchase for $5.99.

As to the remaining property, claimant submitted insufficient evidence that he was in possession of same.

* * *

In view of the foregoing, I find that claimant is entitled to compensation for the two stamped envelopes; the religious pin; the Sakura Pigma pens; the two refill Tuff eraser sticks; the T-Square; the Ant comic book; and the Avengers novel. I further find that the fair market value of such items is as follows: the religious pin - $10.00; the stamped envelopes - $.70(3) ; the Sakura Pigma pens - $6.00; two refill Tuff eraser sticks - $.50; the T-square - $3.00; the Ant comic book - $2.00; and the Avengers novel - $5.00.

Accordingly, claimant is awarded the sum of $27.20 with interest from August 3, 2004 to February 3, 2005 and from May 16, 2005 until the date of this decision pursuant to 19.1 of the Court of Claims Act, and thereafter to the date of entry of judgment pursuant to CPLR 5001 and 5002. Finally, to the extent that claimant has paid a filing fee, it shall be returned to him pursuant to Court of Claims Act 11-a.2.

LET JUDGMENT BE ENTERED ACCORDINGLY.

December 2, 2009

New York, New York

Alan C. Marin

Judge of the Court of Claims


1. Subexhibits A16 and A17 of claimant's exhibit 2 are Livingston Correctional Facility memoranda noting that McIver's claims have been approved for payment in the amount of $2.00 and $10.00 respectively, but there is no indication as to what property they relate.

2. At trial, claimant indicated that he wished to introduce into evidence attachments to a motion he had made, no. M-75045. Following the trial, the court sent both parties a letter dated August 6, 2009, enclosing a copy of exhibits A1 through A30 to such motion, and deeming them trial exhibit 2 for identification. The letter stated that if there were no objections made by either party by September 30, 2009, exhibit 2 would be admitted into evidence. No such objections were made and thus exhibit 2 is in evidence.

3. As set forth above, subexhibit A9 of claimant's exhibit 2 indicates that they were "deposited"at Woodbourne Correctional Facility in 2000. At that time, first class postage stamps cost $.33.