New York State Court of Claims

New York State Court of Claims

KELLY v. THE STATE OF NEW YORK, #2009-030-023, Claim No. 115593


State liable after trial for cost plus interest of tinted prescription eyeglasses paid for by inmate claimant, but never received. Refusal of tender of performance reasonable. Other than filing fee, costs of litigation expenses not recoverable here.

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:
July 29, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Daryl Kelly alleges in his claim - served and filed pursuant to a late claim motion granted by this Court[1] - that defendant’s agents at Green Haven Correctional Facility failed to provide him with eyeglasses containing prescribed photo-gray lenses, although he had paid for same out of his inmate account in the amount of $22.50. On March 27, 2006 he received standard state- issued glasses instead. Trial of the matter was held on June 12, 2009.

Mr. Kelly testified essentially as set forth in his claim. After having his eyes examined, he was prescribed bifocal photosensitive lenses to ameliorate his nearsightedness and allergic conjunctivitis. Physician’s Assistant (PA) Philip Williams, who testified later, confirmed this prescription and condition from his review of the medical records. PA Williams said that Mr. Kelly was evaluated on June 13, 2005 by Dr. Wurtzel, the optometrist, who prescribed bifocals with a photogray tint, as well as Acular drops for allergic conjunctivitis. Allergic conjunctivitis, he explained, “is a periodic inflammation of the eyes due to allergies” that can be “aggravated by bright lights.”[2] Mr. Kelly testified that he paid for the glasses out of his inmate account. [See Exhibit 3].

Claimant testified that his account was encumbered in October 2005 and that he received and signed for the glasses on March 27, 2006, and utilized them during his program assignment as a clerical administrative clerk without incident. He said he never had tinted lenses before, and had no occasion to use the eyeglasses outdoors until he decided to see a movie in the recreation yard on or about July 15, 2006, and then discovered that the glasses did not contain photosensitive lenses. Asked to explain on cross-examination why it took from March 2006 to July 2006 to realize that the glasses did not contain tinted lenses, he said he did not go outside with his glasses before then. Mr. Kelly said:
“I used them for reading and at my program as a chief administrative clerk. There are very few reasons for someone who doesn’t lift weights or anything like that to be in the yard. Watching movies - - it’s seasonal. It wasn’t until that time that I realized that the glasses were not photosensitive. Up ‘till then I was under the impression that they were.”

As was also confirmed by PA Williams, the lenses are not activated and do not darken except in outdoor ultraviolet light. They are not affected by indoor lighting. PA Williams also confirmed that the medical record shows that Mr. Kelly sought confirmation in July 2006 via the sick call procedure that the glasses were indeed not the type prescribed.

It was stipulated by the parties that the glasses that claimant received in March 2006 were not the photosensitive lenses prescribed and paid for.

Mr. Kelly filed an inmate personal property facility claim [Exhibit 1] within five (5) days of his “discovery of the loss,” seeking reimbursement for the $22.50 he paid for the tinted lenses. The claim was denied as “untimely per Directive 2733,” without any other explanation. [See id.]. Claimant submitted a copy of the directive for the Court’s review [Exhibit 2]. He pointed out that the determination of timeliness should have been more flexible given the terms of the directive wherein it is stated that the person reviewing the claim is supposed to consider whether the facility claim was timely filed with “some flexibility” including whether some “unusual situation” obtains. [See id.].

Claimant said he has “three sets of glasses that [he] interchanges consistently all because [he] never got the original bifocal photosensitive glasses back in 2006.” He said he “takes Carolectaid solution (one drop in each eye four times a day), takes 600 milligrams of Ibuprofen (one tablet three times a day) for migraine headaches” and, because of how “everything is interconnected- - eyes, nose, sinuses - [he] was prescribed Clorifectimine for sinuses.” These conditions (“and not being able to see”) have hindered his work, he said.

In addition to the original amount of $22.50 that had been deducted from his inmate account [see Exhibit 3], claimant testified that he is looking for reimbursement for the costs associated with pursuing this claim, including filing fees in this Court, both for filing this claim and a claim that was dismissed because he failed to serve it on the Attorney General’s Office by certified mail, return receipt requested [see Kelly v State of New York, UID # 2008-030-508, Claim No. 112807, Motion Nos. M-74431, CM-74476 (Scuccimarra, J., February 28, 2008)]; mailing fees and photocopying costs, as well as pain and suffering. The filing fee for the first claim was $30.00, and the filing fee for this claim was $35.00. Postage costs amounted to $58.76 and photocopying costs were $75.00. He seeks damages for pain and suffering in the amount of $100.00, for a total damages claim of $321.26.

On cross-examination, he admitted that when he told the facility that the glasses were not photosensitive, they offered to replace the lenses with the tinted ones. Claimant explained, however, that he did not think that it was right that “the money was removed from [his] account right away, and yet he waited five months to get them.” He would not accept the “tender of replacement” and did not think he should have to. He said he is “using [his] discretion as to when to go outdoors,” and that his light sensitivity “seems to be under control” now.

PA Williams had worked for the New York State Department of Correctional Services, primarily at Sing Sing Correctional Facility, for 26 years at the time of trial. He said he was familiar with claimant’s records and the institutional policies concerning eyeglasses. The records showed that following complaints by claimant concerning his eyes he was evaluated on June 13, 2005 by Dr. Wurtzel, who ascertained that Mr. Kelly required glasses, and prescribed bifocals with a photogray tint. “According to the records”, PA Williams said “he signed for glasses in October 2005.” When claimant confirmed with Dr. Wurtzel that the glasses were wrong, Dr. Wurtzel indicated that “Wallkill could make new lenses for him.” PA Williams said it “takes about four to six weeks to make up glasses.” PA Williams confirmed that the records did not show any new order for replacement lenses.

PA Williams said that according to “health services policy 1-03 all inmates with refractive errors are entitled to an examination every two years.” He said (reading): “prescription sun glasses, photogray and tinted lenses will not be provided at State expense except for inmates who have documented pathological conditions diagnosed by an optometrist and/or an ophthalmologist.” No copies of such policies were submitted.

Asked if the lack of the prescribed glasses would affect claimant’s vision, sight or condition, PA Williams said,
“Certainly, if there’s a delay in receiving an appropriate prescription it may cause further deterioration of one’s eyes, but Mr. Kelly did receive prescription glasses to provide accommodation to read and actually see. The tint itself would probably help with the incidence of allergic conjunctivitis.”

On cross-examination by claimant, PA Williams said he was unfamiliar with any “prescreening” requirement for the glasses before they left Wallkill and were given to the patient. He said: “I know for myself when I go pick up my glasses I try them on, make sure I can see properly.” He said: “If there were problems with the lenses, it would be up to the patient to tell us there was a problem.”

No other witnesses testified, and no other evidence was submitted.

A large part of the resolution of this claim rests upon claimant’s credibility, and the weight of the evidence he presented to substantiate his claim. Resolving issues of credibility is the province of this Court as the trier of fact. LeGrand v State of New York, 195 AD2d 784, 785 (3d Dept 1993), lv denied 82 NY2d 663 (1993); Newland v State of New York, 205 AD2d 1015 (3d Dept 1994).

Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has established an adequate basis for the State’s liability. Mr. Kelly was consistent and credible, if remarkably stubborn as well. Indeed, in considering the evidence presented, what is left is a tale of a somewhat misguided allocation of resources on the part of both parties. Nonetheless, claimant paid the State’s agents for a pair of tinted prescription glasses that they did not provide (which they may well have been obligated to provide without payment by the inmate according to the policy read by the State’s witness, PA Williams), and then failed to reimburse claimant for the monies he had duly paid for the glasses. The court credits Mr. Kelly’s explanation for the late realization that he had not been given what he had paid for, and further credits his explanation that he had learned to make do with what he received, and did not want the tinted lenses anymore.

While not strictly a cause of action for breach of contract,[3] what is asserted here is most analogous to an implied in law cause of action for money had and received. See Parsa v State of New York, 64 NY2d 143, 148 (1984).[4] A cause of action for money had and received sounds in quasi contract and arises when, in the absence of an agreement, one party possesses money that in equity and good conscience it ought not retain.

Here, a very simple and uncontradicted scenario has been presented. Claimant paid for his tinted glasses, but defendant failed to provide same and thus did not perform. Trial testimony revealed that when the error was disclosed to defendant by claimant, defendant offered to replace the incorrect lenses with the tinted lenses Mr. Kelly had paid for. This tender of performance was refused. The rationale for such refusal, however, appears reasonable. Clearly, Mr. Kelly had been functioning with the prescription eyeglasses he had, and had compensated for any lack of tint to the lenses to his satisfaction. Moreover, his experience had been that receiving the eyeglasses would take a long time, with no indication that any sort of examination of the eyeglasses or determination that they were what was paid for would occur but for whatever effort he might make to assure that this time he got what he paid for. Since he no longer wanted the tinted lenses, he was entitled to be reimbursed for the monies he had paid for them. That offer - to give him his money back - was not made. Not accepting the replacement lenses does not constitute a failure to mitigate damages under these circumstances.

The court notes that the recovery of costs or litigation expenses is not available against the State in the Court of Claims with limited statutory exceptions not pertinent here. 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).

Based on the foregoing, claimant has established the State’s liability by a preponderance of the credible evidence, and claimant is entitled to damages in the amount of $22.50 plus statutory interest [§16 State Finance Law; § 5004 Civil Practice Law and Rules], which the Court finds presumptively reasonable, from July 15, 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.

To the extent claimant has paid a filing fee with regard to this claim only, it may be recovered pursuant to Court of Claims Act §11-a(2). Claimant has not established other items of compensable damage.

Let judgment be entered accordlingly.

July 29, 2009
White Plains, New York

Judge of the Court of Claims

[1]. See Kelly v State of New York, UID # 2008-030-539, Motion Nos. M-74897, CM-75031(Scuccimarra, J., July 2, 2008).
[2]. Quotations are to trial notes or audio recordings unless otherwise indicated.
[3]. The elements for a cause of action for breach of contract are (1) the existence of an agreement whose terms are mutually understood supported by consideration (2) performance by claimant (3) defendant’s failure to perform and (4) resulting damage. [See generally PJI 4:1].

[4].“Although the action [for money had and received] is recognized as an action in implied contract, the name is something of a misnomer because it is not an action founded on contract at all; it is an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience he ought not to retain and that belongs to another . . . (citation omitted). It allows plaintiff to recover money which has come into the hands of the defendant ‘impressed with a species of trust’ . . . (citation omitted) because under the circumstances it is “ ‘against good conscience for the defendant to keep the money’ ” . . . (citations omitted). The remedy is available ‘if one man has obtained money from another, through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass’ . . . (citation omitted). The action depends upon equitable principles in the sense that broad considerations of right, justice and morality apply to it, but it has long been considered an action at law . . . (citations omitted) . . .

Subdivision 2 of section 9 of the Court of Claims Act gives that court jurisdiction to determine claims for ‘breach of contract, express or implied’. The court had jurisdiction to adjudicate this claim for money had and received, therefore, because it states a legal cause of action for money damages founded upon an implied in law contract . . . (citations omitted). [C]laimant . . . is seeking to recover funds from the State which he alleges belong to him and which the State is wrongfully withholding from him.” Parsa v State of New York, supra at 148-149.