Claimant failed to establish all elements of his conversion claim. The money (likely accumulated illegally by claimant) was seized as contraband by personnel at Mid-Hudson Forensic Psychiatric Facility where claimant was a patient. Allowing claimant to retain $10.00 of the $600.00 seized was a discretionary kindness, as patients were allowed to possess at most $10.00 under facility rules.
|Claimant short name:||L.|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||S. L., PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||November 18, 2009|
|See also (multicaptioned case)|
S. L., the claimant herein, alleged during the trial of his claim that in March 2007 defendant's agents at Mid-Hudson Forensic Psychiatric Facility [Mid-Hudson] took $600.00 he had placed in a sealed envelope for transmission to his mother in Nevada and converted the money to their own use. Specifically, $10.00 was deposited in his own account, and the balance of $590.00 was deposited in a "patient donation account"(1) - a "phantom account" as claimant described it - as authorized by Howard Holunchock, Executive Director of Mid-Hudson at the time.
Lisa Thorne, a social worker employed by Mid-Hudson for 19 years, testified at claimant's request. She indicated that she currently works on claimant's residential ward, and had done so in 2007. Between March 1 and March 16, 2007 - although she was not certain of the dates - claimant gave a manila envelope to the witness, that contained certified mail stickers. [See Exhibit 1]. She confirmed that claimant also gave her a cash withdrawal form - a sample of which was admitted in evidence [see Exhibit 2] - that would allow the payment of postage from Mr. L.'s account. Asked about the procedures when taking requests for certified mail postage from a patient, Ms. Thorne said that the procedure was to give the material to Ms. Mildred Smith, namely the envelope and the forms, who would then process the mail through to the mail room. Ms. Thorne did not recall whether the envelope was sealed, nor was she aware of the contents. She recalled that the envelope and the form were either placed on Ms. Smith's desk or handed to her, but she did recall that Ms. Smith was at her desk at the time.
Mildred Smith, employed as social worker assistant for "about a year and a half" at Mid-Hudson at the time, also testified. Her job responsibilities in March 2007 included "doing the patients' balances and funding and mailing, scheduling interpreters." She normally handled the certified mail requests for patients, as well as the cash withdrawal forms. Her part of "processing the mail" would be to assure that the certified mail postage was there, and to then give it to the mail room. Ms. Smith identified generally a photocopy of the actual manila envelope with the certified forms attached. [Exhibit 1].
As she was removing the metal fastener that normally secures a manila envelope to seal it up again with Scotch tape - a process required by the mail room so that the mail would not get "caught in the machine" - Ms. Smith said that money fell out of the envelope. She "believed that a twenty-dollar bill fell out." She saw more currency was enclosed, and a one- or two-line note on lined paper. When she found the money, she called Ginger Andre, treatment team leader on the floor she worked on, and gave everything to her. She could not recall if she gave and signed a written statement.
On cross-examination, she explained that when she saw the money she became concerned because patients are "only allowed coins, not paper money." The flap on the envelope was not sealed, as she recalled it, and the clasp alone shut the manila envelope.
Ginger Andre, who was a treatment team leader in March 2007, also testified. She recalled Mildred [Smith] calling her to Ms. Smith's office saying she had found cash in an envelope she was processing. Mildred showed Ms. Andre an envelope containing "twenties, [and] fives;" she did "not remember how much, but cash is contraband which is why Mildred had called [Ms. Andre] over." Ms. Andre did not recall handling the envelope, and did not specifically recall what happened thereafter, including what happened to the envelope "once it left Mildred's desk." She said that the policy was to make an incident report, notify risk management, and then either safety or risk management would have taken it. She could not specifically recall.
A report of an investigation containing findings [Exhibit 3] did not refresh her recollection, she said, but seemed in keeping with what she would have done. The findings indicate that she notified Sergeant Cooney of the Safety Department, Senior Security Hospital Treatment Assistant [SHTA] Santos, and Chief Neale, and that "the envelope with the entire contents was placed in the possession of the Safety Department." [Exhibit 3]. This report essentially confirms the information given by the witnesses above, and provides further that Mr. L. acknowledged that "he was aware that paper money was contraband" and that "he was not going to say anything without his lawyer present." [Exhibit 3].
A letter to claimant dated June 6, 2007 from Howard Holanchock, Executive Director at Mid-Hudson, provides:
"Recently, you were found to be attempting to mail contraband in the amount of $600.00 outside the facility. This is to inform you ten dollars ($10.00) is being placed in your patient account. The remainder, $590.00, is being deposited into MHFPC's patient donation account." [Exhibit 5].
Howard A. Holanchock, currently Assistant Commissioner for the New York State Department of Correctional Services, and Executive Director at Mid-Hudson from 2003 to 2007, testified. Although he did not specifically recall the month, he recalled "getting a phone call at home on a Monday morning during a snowstorm" telling him that approximately $600.00 in currency was found in an envelope presented by S. L. for mailing to his parents. The Risk Manager was instructed to begin a special investigation - an investigation that only the Executive Director could initiate - and findings resulted. Reviewing Exhibit 3, Mr. Holanchock said it
"was mostly accurate. The money sources were more extensive - it was not just from gambling - $1000.00, for example, was found elsewhere on the unit. We got more testimony from other patients about the source of money."
The L. money was put in a contraband locker while the investigation was ongoing and, Mr. Holanchock said, "at some point I made a decision as to what should be done with the money." As a matter of facility policy, he recalled that patients were allowed a maximum of $10.00 in coins for vending machine purposes. Paper money, however, is viewed as contraband. After the investigation was over, Mr. Holanchock made the decision - as expressed in the June 6, 2007 letter to Mr. L. - to allow $10.00 of the total sum to be deposited in Mr. L.'s patient account, and to deposit the balance of $590.00 into the "MHFPC's patient donation account." Mr. Holanchock said that the donation account is one kept by the facility to "buy extra things for patients, for example, pizza for special occasions, for ceremonies, or for celebrations suggested by the patient committee."
Mr. Holanchock did not seek permission from Mr. L. for the disposition of the money because it is against facility rules to have more than $10.00 in coins. He made the decision to be fair and "allow $10.00 paper to be deposited, even though paper money of all amounts is contraband." Mr. Holanchock explained, when asked by claimant, that while both heroin and paper money are contraband, "obviously heroin would not be given back in any amount to a patient." Mr. Holanchock left Mid-Hudson in September 2007, so he did not know how the $590.00 was spent.
Mr. Holanchock agreed that there was a privilege system for patients in place at Mid-Hudson. [Exhibit 6]. Based upon a patient's behavior, a patient is granted privileges to different levels. Mr. Holanchock did not know what claimant's level was in March 2007 before this incident. Claimant himself said he "believed that [he] was on gold card level until this incident." After reviewing the description of the various levels, Mr. Holanchock agreed that there is no listing of any amount of money as being allowed in the possession of a patient, but said that the possession of some amount of money is implied because of the allowed use of vending machines. Additionally, patients have patient accounts. Mr. Hollanchock also said it was the treatment team's decision to "demote" a patient down from a given privilege level.
Stephen W. Otte, an SHTA for 18 years, also testified. He said that "for the most part" he is familiar with the rules and regulations of the ward, and is familiar with the privilege system. If a patient "has a gold card", he is allowed $10.00 in coins; if a patient "is a silver," he is allowed $9.00, and if a patient is at the entry level, he is allowed no more than $3.00.
In closing argument/testimony claimant repeated that the money should be his, that there is no showing of a policy that contraband monies should go to a patient donation account. He said that "all the money should have gone to me; or it all should have gone to this phantom account." He argued "how could they justify $10.00 in my account rather than $3.00, since I was likely dropped two levels. There is no mention in the privilege system of allowing any money on patients."
On cross-examination, claimant asserted his "fifth amendment" privilege when asked where the money came from. He said, "this was money I had in my own possession through various deals that I had made at some point or points while a resident at Mid-Hudson or even before. How I obtained the money is irrelevant."
No other witnesses testified and no other pertinent evidence was submitted.
"In order to establish a conversion claim, a . . . [claimant] must show that he had 'an immediate superior right of possession to the identifiable fund and the exercise by defendants of unauthorized dominion over the money in question to the exclusion of [claimant's] rights' . . . (citation omitted)." Fitzpatrick House III, LLC v Neighborhood Youth & Family Servs., 55 AD3d 664 (2d Dept 2008); see Dippolito v State of New York, 192 Misc 2d 395 (Ct Cl 2002).
It is claimant who has the burden of establishing every element of the cause of action he asserts in his claim by a preponderance of the credible evidence.
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant failed to establish any claim of conversion. Even assuming that the cash claimant attempted to mail was rightfully in his possession in the first place - an assumption belied by his testimony suggesting it was accumulated illegally - the second element of "unauthorized dominion" on the part of the defendant is not established on this record. All witnesses, including claimant, acknowledged that paper money is contraband under facility rules, authorizing its seizure by the facility. It was the uncontradicted testimony of all witnesses that patients were allowed to possess on their person, at most, $10.00 in coins. Mr. Holanchock's discretionary determination to allow claimant to retain $10.00 in claimant's patient account, when by all accounts all such monies were subject to seizure as contraband, appears to have been a kindness that claimant would now have the Court punish.
Based on the foregoing, claim number 116706 is in all respects dismissed.
Let judgment be entered accordingly.
November 18, 2009
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. All quotations are to audio recordings unless otherwise indicated.