WOLF v. THE STATE OF NEW YORK, #2009-030-007, Claim No. 113348
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
MARK WOLF, PRO SE
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
March 26, 2009
See also (multicaptioned
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
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,”
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.
. 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
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
, III-A, I am also reporting
the damage to you . . . ” [Exhibit 1].
In the memorandum to the institution steward also dated August 30, 2006
“I plan to file a claim for that
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
“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.
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
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.
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.
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].
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
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.
This is the procedure described in facility regulations and also set forth in
DOCS Directives available to the public at its
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
; Matter of White v City of Mount
, 221 AD2d 345, 346 (2d Dept 1995); Sweeney v Bruckner Plaza
, 57 AD3d 347 (1st Dept 2008); see also Dippolito v State of
, 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
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
, UID # 2007-029-056, Claim No. 110061 (Mignano, J., January 9,
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
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. 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.
. Quotations are to trial notes or audio
recordings unless otherwise indicated.
. 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].
. Directive 2733 is in evidence as Exhibit
.Referring to the broken typewriter.
. 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
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).
. 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).
. 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.’ . . .
). 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. 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