New York State Court of Claims

New York State Court of Claims

WOLF v. THE STATE OF NEW YORK, #2009-030-007, Claim No. 113348


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:
Third-party defendant’s attorney:

Signature date:
March 26, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


State found liable after trial for cost of replacing (now) prohibited opaque-casing typewriter damaged by facility, then destroyed, with more expensive clear-casing typewriter. Damage flows from conversion of property by its destruction in violation of regulations allowing claimant options for disposal of prohibited property. Uncontradicted, credible testimony together with documentary proof support claim. Mark Wolf,[1] a former inmate proceeding pro se, alleges in his claim that defendant’s agents at Fishkill Correctional Facility [Fishkill], or at Southport Correctional Facility [Southport] or at Auburn Correctional Facility [Auburn] physically damaged his personal property, specifically, a typewriter, and then seized it without authoritzation. Trial of the matter was held on February 11, 2009.

Mr. Wolf testified that he was in the custody of the New York State Department of Correctional Services [DOCS] from April 29, 1995 to October 25, 2007. In his written claim, and in his trial testimony, Mr. Wolf described his various transfers within and between facilities operated by DOCS [see Claim Number 113348 filed 2-20-07], as well as his initial receipt of a Smith Corona Wordsmith 250 electric typewriter while incarcerated at Gouverneur Correctional Facility [Gouverneur] ordered on March 10, 2005 for $137.75. [Exhibit 11].

After claimant had already purchased the typewriter at issue in March 2005, DOCS “amended its regulations,”[2] specifically Directive 4911 dated August 16, 2005, to require that inmates have typewriters with clear, rather than opaque, cases, although inmates who already had typewriters with opaque cases were allowed to retain them. [Exhibit 5]. Claimant’s typewriter was in an opaque case. A review of Directive 4911 shows that it was amended May 22, 2006 and provides that the body casing of typewriters possessed by inmates must be clear. [Ibid.]. In the copy submitted in evidence, there does not seem to be any indication one way or the other as to casing requirements for typewriters as of the issue date of August 16, 2005, however references elsewhere in the directive refer to clear casings on electronic devices, as well as the “grandfathering” aspect. [Ibid.][3]. Additionally, pages appear to be missing from the copy submitted which might have specific information about typewriters. No witness other than claimant described what portions of the three directives submitted in evidence [see Exhibits 3, 5 and A] were applicable.

On March 6, 2006, Mr. Wolf was transferred from Gouverneur to Fishkill, where he determined that the typewriter was still functioning properly. While at Fishkill, and on March 10, 2006, Mr. Wolf was transferred to the Special Housing Unit [SHU] at Fishkill, where he was “unable to carefully examine and test his typewriter at that time.” [Claim Number 113348, ¶7]. The typewriter was held in storage throughout his residency in Fishkill SHU. He was moved again on April 21, 2006 to Southport. While there, the typewriter was held in storage, and he never examined it. Finally, on August 29, 2006 claimant was transferred to Auburn, and on August 30, 2006 he received his typewriter.

Mr. Wolf noted that while “everything was packed outside” his presence, he saw how the property was sent during the transfer from Fishkill to Southport specifically, and noted that the typewriter was “not in a box as required by DOCS regulations.” [Exhibit 3]. He said that generally, property is put in large plastic bags with a tag and a seal. Later, when he was in the draft processing room at Auburn, “they took the sealed packages and opened them in front of him . . . [He] saw that the typewriter was loose in the bag - not in a carton or bubble wrapped or whatever.” Directive 4917 requires, he said, that typewriters be placed in a box when shipped. [See Exhibit 3]. When he arrived back in his cell, he could see that pieces had been broken, and it would not function. That same day, he stated, he wrote memoranda to facility personnel reporting the damage and seeking permission to send the typewriter to a repair center for repair. [Exhibit 1].

A memorandum written to the block housing sergeant recites in part:
“I reported the damage to the institution steward and advised that I intend to file an inmate claim seeking reimbursement. However, pursuant to DOCS Directive #2733[4], III-A, I am also reporting the damage to you . . . ” [Exhibit 1].

In the memorandum to the institution steward also dated August 30, 2006 claimant wrote:
“I plan to file a claim for that damage[5] as soon as I can obtain the necessary form. In the meantime, please advise me if any facility personnel would like to examine the typewriter before I send it to a repair facility.
In addition, I plan to send the typewriter to Mohawk Typewriter & Office Equipment, 1307 Champlin Avenue, Utica, NY. . . Please advise me as to the procedure I must undertake in order to ship that typewriter and to receive it again upon its repair and return.” [Ibid.].

L. J. Dickes, the head account clerk at Auburn, wrote back to claimant on the original memorandum dated August 30, 2006 addressed to the steward indicating as follows:
“Fill out, attach proof of ownership. When approved, fill out dispersement (sic) to ship and repair.” [Ibid.].

Claimant filed an inmate personal property claim as directed, dated August 31, 2006. [See Exhibit 2]. He sought reimbursement in the amount of $123.97, representing a depreciated value for the typewriter since it was 17 months old at the time it was received in damaged form.[Ibid.]. There is no indication on the inmate claim form that he was seeking anything other than reimbursement for the damaged typewriter. [Ibid.]. There is no request to repair the typewriter on this form, but given the context of his original request to the steward, it cannot be said - in the absence of a State witness - that based upon claimant’s testimony as to his understanding, he was not seeking the option of repairing the typewriter, and responded on the form provided by the facility. [Ibid.].

He testified that he had not received a response on his inmate claim by September 17, 2006, and wrote to the steward to find out what happened. [Exhibit 4]. L.J. Dickes wrote back on September 22, 2006 indicating the claim was rejected pending receipt of documentation. [Ibid.]. Claimant was told to produce receipts or other evidence of ownership and value, within thirty (30) days. [Ibid.]. The inmate claim form [Exhibit 2] was apparently returned to Mr. Wolfe on that date as an attachment to the memorandum from L.J. Dickes: a fact he makes reference to in a subsequent memorandum dated September 26, 2006 [Exhibit 4], and that also appears to be reflected on the claim form itself in that there is a dated signature by the clerk indicating “9/22/06.” [Exhibit 2]. The “rejected” box is checked on the form. [Ibid.].

In the September 26, 2006 memorandum to L.J. Dickes, Mr. Wolf wrote enclosing the receipts requested in her memorandum of September 22, 2006. [Exhibit 4].

On October 4, 2006 L. J. Dickes wrote another memorandum to claimant indicating that his inmate claim was approved in the amount of $100.00. [Exhibit 4]. The same inmate claim form returned and originally marked “rejected” on September 22, 2006, was apparently returned to claimant at that time, with an additional check mark in the “approved” box, another handwritten date of “10/4/06”, and an additional notation “cc: package room. Remove permit & confiscate typewriter.” [Exhibit 2]. While the explanatory memorandum of October 4, 2006 indicates that $100.00 was being offered, it does not indicate anything about confiscating the typewriter. [See Exhibit 4]. Indeed the only reference to confiscation, is the handwritten note on the inmate claim form - that already contained conflicting dispositions of rejection and approval indicated thereon, as well as two different dates of September 22 and October 4 - directed to someone other than Mr. Wolf, namely, the package room. [Exhibit 2]. The October 4, 2006 memorandum refers to requirements that claimant sign certain releases in order to obtain the money. [Exhibit 4].

On October 13, 2006, at the instruction of one of the correction officers, Mr. Wolf brought his typewriter to the package room. It was confiscated there, and he was advised that it was being confiscated and destroyed because his inmate claim was “being paid in full.” Two typewriter ribbons were taken as well (since they were in the typewriter). Claimant testified that such confiscation was a surprise, and that he thought arrangements were in place to send the typewriter out for repair. There is no indication that the claimant completed forms for disposal of the property as contraband, or any other documentation of the disposal of the damaged typewriter. Moreover, there is no indication that claimant had accepted the offer of payment at that juncture, by, for example, executing the release that the clerk mentioned as necessary to receiving payment in the memorandum to Mr. Wolf of October 4, 2006. [See Exhibit 4]. Claimant testified without contradiction that he was told that the damaged typewriter was being confiscated because he had been paid on his inmate claim, and that his indications to package room personnel that he had not been paid and wanted to repair the typewriter were unheeded.

After the confiscation, on October 13, 2006, he wrote to the account clerk pointing out that because of the requirements concerning clear-case typewriters, he would not normally be able to get a replacement that did not contain a clear case. [Exhibit 6]. He stated, however, that inmates who possessed typewriters with opaque cases prior to the amendment had been allowed to keep them and, since his typewriter had been damaged through no fault of his own, he thought he should be allowed to replace his damaged typewriter (now confiscated and destroyed) with the otherwise prohibited type of typewriter, namely one in an opaque case, but would need permission to do so. [Ibid.].

On October 18, 2006 he again wrote to the clerk referring to her memorandum of October 4, 2006, and now indicating that he would accept the $100.00 offer of settlement, but only if he were allowed to receive an identical replacement to the damaged typewriter, namely a typewriter with an opaque case. [Ibid.]. Puzzlingly, the clerk responded by inquiring as to whether the typewriter had a clear case in a note written on the bottom of the memorandum claimant had written, and additionally advising claimant “it has to be clear-cased.” [Ibid.].

On October 22, 2006 Mr. Wolf sent another memorandum to the clerk, to clarify his October 18, 2006 memorandum. [Exhibit 6]. Among other things, he wrote that his inmate claim had been for the cost to repair his old typewriter, which he had been allowed to retain despite its opaque cover. He wrote that before he could have it repaired, however, it was “confiscated and destroyed.” [Ibid.]. As a result, he continued, unless the facility was willing to allow him to purchase a typewriter with an opaque case, he would reject the settlement offer because clear- case typewriters were much more expensive. [Ibid.]. There is a notation on this October 22, 2006 memorandum, presumably by the clerk, indicating “Capt. - Decision needed. Wants same typewriter he lost.” [Ibid.].

Thereafter, on October 26, 2006, in a memorandum from Captain Gummerson to the account clerk, claimant’s request to purchase a replacement typewriter without a clear case was denied based upon the constraints imposed by Directive 4911 concerning typewriters, and the captain recommended that the inmate accept the offer of reimbursement. [Ibid.].

On November 1, 2006 Mr. Wolf submitted a “revised” inmate claim form now seeking the replacement cost of a clear cased typewriter (rather than “repair costs for his old typewriter”), and the replacement cost for two (2) typewriter ribbons (since the old typewriter had two ribbons in it when it was confiscated). [Exhibit 7]. The total now sought was $326.91. [Ibid.]. Additional documents were submitted to the clerk by memorandum dated November 6, 2006. [Exhibit 8]. In disapproving the claim on December 11, 2006 L. J. Dickes wrote: “010-0183-06 Duplicated and expanded. You were offered $100.00 to settle this claim.” [Exhibit 7].

Claimant appealed this disapproval of his revised claim [see Exhibits 7 and 9], which was then disapproved by the Superintendent on December 20, 2006. [Exhibit 7].

Mr. Wolf also filed (simultaneously) a grievance with the Inmate Grievance Resolution Committee [ IGRC] on October 31, 2006 requesting that he be allowed to receive a replacement typewriter with an opaque case, which was denied on November 16, 2006. [Exhibit 10]. The initial IGRC determination indicates:
“Grievance denied. Per Sgt. Petrosino, there is no record of staff confiscating his typewriter. Directive #4911 is a positive Directive. The new typewriter must be clear.” [Ibid.].

Claimant’s appeal of the grievance was then further denied by the State Central Office Review Committee [CORC] on December 20, 2006. [Ibid.]. The CORC decision reads:
“Upon full hearing of the facts and circumstances in the instant case, the action requested herein is hereby denied. CORC notes that the grievant’s typewriter was broken and altered. As such, it was properly confiscated and destroyed. CORC also notes that the grievant filed a personal property claim which was approved for $100.00, however, he has not responded to this offer. Additionally, CORC asserts that the grievant may only order a new clear case typewriter to replace his altered one.” [Ibid.].

Claimant argued that the grievance (and other documents) show that “they kept switching positions. First they said they didn’t confiscate it at all - then they said I had altered the typewriter.”

Claimant purchased a clear-case typewriter on or about January 12, 2007, which cost $349.75, as well as replacement typewriter ribbons for $8.75. [See Exhibit 11]. He seeks reimbursement for those purchases, as well as reimbursement for photocopying costs in the amount of $12.00 [Exhibit 13], postage $11.32 [Exhibit 12]; and the filing fee in this court.

The claim in this court appears to have been served on or about February 7, 2007 and filed in the Office of the Chief Clerk of the Court of Claims. [See Court’s Exhibit 2]. An answer containing this claim number was filed in the Office of the Chief Clerk of the Court of Claims on March 12, 2007. [Court’s Exhibit 1].[6]

On cross-examination, Mr. Wolf maintained that the two inmate personal property claims were treated as one by the facility, thus his appeal from the “revised” claim sufficed as an appeal from the initial offer of $100.00. Once the typewriter was confiscated, it was his view that the whole matter changed, and he was then entitled to seek compensation for the replacement cost of the only kind of typewriter the facility would now allow, one with a clear case. He maintained that such typewriters were more expensive than the kind he had received in damaged condition. He had to acknowledge that he did not appeal (directly) the settlement offer of $100.00, nor did he precisely reject it. Instead, he attempted to negotiate conditions to accepting the offer of settlement largely because he did not want to pay for the more expensive typewriter with a clear casing. The court notes that this is borne out by the documents he offered. In response to defendant’s question as to whether claimant sought judicial review of the denial of his request for permission to purchase and receive a typewriter with an opaque casing, in a proceeding brought pursuant to Article 78 of the Civil Practice Law and Rules, he indicated: “I believe I did. I honestly don’t remember. It would be in State Supreme Court but I don’t remember what county.”

There was also some colloquy concerning the nature of the casing on the damaged typewriter. Claimant indicated that while there was a “thin plastic cover that snapped over the keyboard itself”, it was not a completely encased typewriter: the ribbon portion was still exposed. Had the typewriter been completely encased in a hard shell, DOCS might have been “exempted” from utilizing the box required by Directive 4917[7] for mailing. Claimant pointed out, and the court agrees, that whether it was in a box or a bag, DOCS was still responsible for conveying it in a fashion to prevent damage in transit.

No other witnesses testified and no other evidence was submitted.

Part of this claim is in the nature of a bailment, whereby negligence by the alleged bailee in a bailment created between defendant and claimant by delivery of claimant’s personal property into the custody of defendant’s employees is alleged. See generally Claflin v Meyer, 75 NY 260 (1878). The State has a duty to secure an inmate’s personal property. Pollard v State of New York, 173 AD2d 906 (3d Dept 1991). “Where a bailment is created, a showing that the . . . [property was] delivered to the bailee and returned in a damaged condition establishes a prima facie case of negligence and the burden shifts to the bailee to demonstrate that it exercised ordinary care . . . (citation omitted)” Board of Educ. of Ellenville Cent. School v Herb’s Dodge Sales & Serv., 79 AD2d 1049, 1050 (3d Dept 1981).

Generally, when an inmate is in possession of “surplus or disallowed property”, he is given the option of having the property destroyed, donated, picked up by a visitor within a certain time frame or mailed to another location at his expense.[8]
This is the procedure described in facility regulations and also set forth in DOCS Directives available to the public at its website.[9] Indeed, facilities generally provide the inmate with Form 2068, entitled “Authorization for Disposal of Personal Property,” that gives the inmate the options for disposal. This does not appear to have occurred in this case.

Additionally, since the October 4, 2006 offer of settlement of the claim, as memorialized in the explanatory memorandum [Exhibit 4] and the marked-up inmate claim form [Exhibit 2], was never accepted, it is unclear by what authorization the damaged typewriter was seized. No evidence was offered to rebut claimant’s version of events to the effect that his property was damaged through no fault of his own. His property was then seized prior to there having been a financial resolution of the damage, and the only replacement he could purchase was more expensive, a situation he would not have been in had those responsible for his typewriter’s transmission from one place to another properly packaged it so it would not be damaged.

In this case, claimant has established the State’s negligence, as the only witness to testify and his testimony - although somewhat opportunistic in places - was largely credible and
uncontradicted by any State witness. He has established his own initial possession of the typewriter, its delivery and original value, as well as its return in a damaged condition
There has been no showing as to whether the State exercised ordinary care with regard to the typewriter to rebut the presumption of negligence in the bailment. Thus, the State was obligated to compensate claimant for the fair market value of the typewriter.

The inquiry might stop there but for the fact that the initial damage was then compounded by placing claimant in the position of purchasing a replacement typewriter that was more expensive than the damaged one. Seizing and destroying the typewriter without offering alternatives took away claimant’s options, and supports a cause of action for conversion, whereby defendant exercised dominion and control to the exclusion of claimant’s superior rights to possession. See Sporn v MCA Records, 58 NY2d 482, 487-488 (1983)1[0]; Matter of White v City of Mount Vernon, 221 AD2d 345, 346 (2d Dept 1995); Sweeney v Bruckner Plaza Assoc., 57 AD3d 347 (1st Dept 2008); see also Dippolito v State of New York, 192 Misc 2d 395, 397 (Ct Cl 2002). As noted, no showing has been made that the seizure and final disposition was otherwise authorized. This makes the cost of the subsequent purchase by claimant the natural and foreseeable result of defendant’s wrongful conduct in first damaging the typewriter, and then seizing and destroying it without presenting alternatives for its disposal.

To be made whole in this case in negligence terms is to be reimbursed for the cost of the replacement typewriter. Cf. Joseph v State of New York, UID # 2007-029-056, Claim No. 110061 (Mignano, J., January 9, 2008).1[1] The court credits Mr. Wolf’s indication that he pursued judicial review of the determination that he could not replace his damaged opaque-casing typewriter with another typewriter with opaque casing. It is noted parenthetically that such review would not be necessary in any event since the ultimate recovery here flows from the conversion of claimant’s property upon its seizure by personnel in the package room, its destruction without providing claimant any options, and the normal and foreseeable consequence of defendant’s actions. In terms of any other exhaustion requirement, from the record here it appears that the facility did not finish “disposing” of the inmate property claim until it resolved the revised claim presented by claimant and treated the property claim as one matter.

The recovery of costs or litigation expenses is not available against the State in the Court of Claims with limited statutory exceptions. See Court of Claims Act § 27; Russo v State of New York, 50 AD3d 1554 ( 4th Dept 2008), lv denied 11 NY3d 702 (2008); Gittens v State of New York, 175 AD2d 530, 530-531 (3d Dept 1991).

Resolving issues of credibility is the province of this court as the trier of fact. LeGrand v State of New York, 195 AD2d 784 (3d Dept 1993), lv denied 82 NY2d 663 (1993). An important part of that role is observing the behavior and demeanor of witnesses as they testify, assessing the internal consistency of their accounts, and the court is never bound to credit a particular fact. In this case, the only witness to testify concerning the matter was Mr. Wolf. Certainly the court is not obligated to accept his testimony, because a court is always required to assess the credibility and consistency of any witness offered, and has done so in this case.

Accordingly, as the trier of fact and law, charged with assessing the credibility of witnesses and evaluating the evidence, the court finds that the testimony offered by claimant, measured against his demeanor as he testified, as well as all the unrebutted documentary evidence he placed in evidence, was credible, and claimant has established by a preponderance of the credible evidence that the State of New York should be held liable for his loss.

Based on the foregoing, claimant has established that he has been damaged in the amount of $355.15, and he is hereby awarded damages in the amount of $355.15 plus statutory interest [§16 State Finance Law; § 5004 Civil Practice Law and Rules], which the Court finds presumptively reasonable, from August 30, 2006 to the date of this Decision, and thereafter to the date of the entry of judgment pursuant to Civil Practice Law and Rules §§ 5001 and 5002.

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).

Let Judgment be entered accordingly.

March 26, 2009
White Plains, New York

Judge of the Court of Claims

[1]. Claimant legally changed his name from Matthew Scott Pante to Mark Wolf by Final Judgment of the Superior Court of New Jersey, Warren County, signed on May 19, 2008 effective June 15, 2008. The claim caption in this Court was amended to reflect the name change by Order filed on October 10, 2008.
[2]. Quotations are to trial notes or audio recordings unless otherwise indicated.
[3]. Directive 4911, Part III-A-5 indicates in part: “An inmate will be permitted to retain electronic devices received under a previous version of this directive (i.e. without clear cases) if transferred to a new facility . . . ” [Exhibit 5].
[4]. Directive 2733 is in evidence as Exhibit A.
[5].Referring to the broken typewriter.
[6]. This answer is clearly not responsive to the claim at issue, however the Attorney General’s Office apparently wrote this claim number on the face of the answer when submitting it to the Clerk’s Office, thus the answer was filed with this claim. Mr. Wolf apparently had four (4) claims pending simultaneously [see Claim Nos. 111415,113217,113309, 113348], two of which were assigned to this court, while others were assigned to different judges. An additional answer, containing an entirely different claim number, was apparently intended as a response to this claim. Since the primary issue raised in the answer not filed with this claim was an allegation that claimant failed to exhaust his administrative remedies (by not further appealing the initial offer of $100.00 presumably, though this was not precisely clear), and defendant moved to dismiss on that basis, whether the answer filed with this claim is the correct one is academic. The exhaustion defense is not one of those that is waived by defense inaction - not a “timeliness” defense [see Court of Claims Act §11(c)] - as interpreted by the Second Department, and may be raised even at trial. See Williams v State of New York, 38 AD3d 646 (2d Dept 2007).

[7]. Directive 4917 Transferring Inmate Property. Part III-B-8 states: “. . . a musical instrument or typewriter,
. . . transferred as personal property must be packed in the proper music or typewriter case or securely packed in a box so as to prevent damage . . . ” [Exhibit 3].
DOCS Directive No. 4913, Inmate Property (III D. Disposal of Excess Property). See
1[0]. In reviewing distinctions between trespass to chattels and conversion, the Court said “. . . [A] ‘denial or violation of the plaintiff's dominion, rights, or possession, is the basis of an action for conversion’ (23 NY Jur 2d, Conversion, and Action for Recovery of Chattel, § 3, p. 210). The question then becomes whether the defendant’s alleged conduct constituted an interference with plaintiff's property or was a denial of plaintiff's rights to the property or possession of that property. ‘A continuing right may exist where there is an interference with but no destruction or conversion of property.’ . . . (citation omitted). The mere assertion of a continuing right, however, will not be sufficient to have the cause of action deemed a continuing trespass if the facts as pleaded indicate that the defendant’s alleged conduct, if proven, would constitute a taking of the property and a conversion of that property to his own . . . If, however, the conduct the plaintiff seeks to recover for amounts to the destruction or taking of the property, then the action is properly deemed one for conversion.”
[1]1. In this claim, State personnel had damaged a keyboard in transit, acknowledged their culpability, and sent it back to the manufacturer for repair. After some follow-up, the State learned that the manufacturer had repaired and then sold the keyboard. The State reimbursed claimant for the original purchase price. The Court said: “With respect to the . . . aspect of the claim, arising from the damaged keyboard, it is clear that claimant received full reimbursement for the cost of the keyboard and that defendant has no further liability. To the extent claimant asserts he was not made whole by the reimbursement of the purchase price because prices had risen and he could not replace the keyboard for that amount, his potential claim in that regard would properly be asserted against [the manufacturer], not the State of New York. It was that company that made the mistake and that company that paid claimant what it felt was the proper measure of damages. The unauthorized disposition of the keyboard was not a natural or foreseeable result of defendant's wrongful conduct in damaging the keyboard nor was it a natural or foreseeable consequence of defendant’s decision to compensate claimant by assuming responsibility for the repair of the keyboard. Defendant fully satisfied any obligation it had with respect to the keyboard by sending it out for repair and then obtaining the refund of the purchase price for claimant.”