New York State Court of Claims

New York State Court of Claims

ARCE v. THE STATE OF NEW YORK, #2001-016-048, Claim No. 96327


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):

Alan C. Marin
Claimant's attorney:
George Arce
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG
Third-party defendant's attorney:

Signature date:
June 25, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the claim of George Arce, who alleges that because of defendant's negligence, certain items of his personal property were damaged or missing when he was transferred from Sullivan to Shawangunk Correctional Facility. The claim was tried at Sullivan Correctional Facility, where claimant testified on his own behalf and called correction officer Michael Van Pelt. Defendant called no witnesses.

Arce testified that the usual procedure when inmates are transferred between correctional facilities is that they "have the right to view . . . their property . . . before they are sent . . . on a draft. They . . . stand there with the officers, they go item by item. The officer logs everything down in an I-64 . . ." He stated that this procedure was not followed when he was transferred on March 19, 1997: "I came with my bag, went to the draft area . . . expecting to go through the property with Officer Fischer. However, for some reason . . . I was just placed on a van and sent to Shawangunk . . ." Claimant's exhibit 1 contains a form entitled "Personal Property Transferred," which is signed by a correction officer and indicates that claimant was "not present" for the packing of his property.

Arce recalled that two days later, after his arrival at Shawangunk, Officer Van Pelt called him to the draft area to receive his property and, in claimant's presence, opened his seven bags of property. Arce recalled that as they were going through the items, Van Pelt noticed that much of claimant's property was stained with oil and glue. According to claimant, Van Pelt said "[i]t seems like the officer that packed your property didn't like you."

Claimant testified that glue was on many items; he could not say whether it was on items from all seven bags or just some. He stated that prior to transfer, he had had two bottles of Elmer's Glue (see claimant's Exhibit 1, an I-64 form which lists "2 glue"), but when he and Officer Van Pelt went through his property, one was missing – including the container. The other container was full and intact. Arce argued that the glue must have been deliberately put on his property, because if the glue container had merely opened during transport, the container itself would still be with his property. Claimant thus surmised that "they" had laid out his property, poured glue on it and then packed it in the bags. He explained that the packing officer had been angry at him when he arrived with his property, asking him why he took so long to arrive at the draft area. Asked on cross-examination why defendant's exhibit A, an Inmate Claim Form, does not list missing glue, claimant explained that he only listed the items that were most important to him on that form. He testified that because of the damage to his property, he refused to sign the inmate acknowledgment on the I-64 form.

Claimant testified that the damaged property included classical music cassettes which he described as irreplaceable and for which he paid $15-$20 per tape. In addition, out of his collection of two- to three-hundred photographs of family and friends, fifty were covered with glue and stuck together. (He noted that he also had photographs in an album, but they were not damaged as they were under plastic.) Finally, he stated that the legal documents listed on his Inmate Claim Form related to both his criminal case and to various civil cases, however he noted that the civil cases are no longer pending.

Officer Michael Van Pelt testified that although he recognized claimant, he did not recall the particular incident which is the subject of this claim; he explained that he handles the property of most incoming inmates to Shawangunk.

Van Pelt described the process of providing a transferred inmate with his property as follows: the inmate's property is brought to Van Pelt's office and then the inmate is brought in and the bags are opened in front of him. If anything is missing or broken, it is noted on the I-64 form and if a permit is required for an item, such as an electrical item or jewelry, it is provided. When this is completed, the inmate takes the property to his cell.

Van Pelt testified that if a glue bottle was missing from Arce's property, it would have been noted on the I-64 form,
i.e., he would have "start[ed] my own column" and noted the missing items. Finally, Van Pelt could not recall making any comment about the packing officer not liking Arce.
* * *
Claimant testified credibly that when his bags were opened, he discovered glue on items of his property and that one of his containers of glue was missing. In addition, as set forth above, he refused to sign the inmate acknowledgment on the I-64 form because of the damage. Officer Van Pelt, who unpacks many arriving inmates, had no recollection of the incident. His testimony that if a glue bottle were missing, he would have noted it on the I-64 was not particularly persuasive. I find that while claimant's property was in defendant's custody and control, glue was poured on claimant's property. See 7 NYCRR §1700.7(b) which provides in relevant part that "[w]hen an inmate's property was last in the control of the [Department of Correctional Services] or its agents, and the department fails without good explanation to deliver it in [sic] to the inmate . . . in the same condition as when received by the department, then there is a rebuttable presumption that the department is negligently responsible for the loss." Accordingly, as to liability, Arce has made his case by a fair preponderance of the evidence.

With regard to damages, the measure of recovery is fair market value. See., e.g.,
Schaffner v Pierce, 75 Misc 2d 21, 24, 347 NYS2d 411, 415 (Nassau County Dist Ct. 1973). Phillips v Catania, 155 AD2d 866, 547 NYS2d 476 (4th Dept 1989).
I find that the market value of the items listed on Arce's Inmate Claim Form is as follows. There has been no suggestion that the soap or food items were perishable or should otherwise be discounted. Accordingly, claimant is entitled to the full value of $6.00 for the six bars of soap, $6.50 for the two bags of almonds and $5.00 for the 100 coffee packets. I further find that the fair market value of the Gilbert's law book is $15.00, the fifty photographs are worth $250 and the five legal folders are worth $50.00. Finally, the fair market value of the linen and clothing items is found by discounting the items at 20% per year:
Hooded sweat shirt $3.00
Sheet, one $3.00
Shirts, five $30.00
Towels $6.00
Slippers $2.00
Shoes, two pairs $8.00
Sweaters, two $12.00
As to the classical music cassettes, they are not referred to in either Arce's claim or the Inmate Claim Form. Nor did Arce indicate how many were damaged. No award is thus being made for them.

Accordingly, claimant is awarded the sum of $396.50 with interest from March 21, 1997 until the date of this decision and thereafter to the date of entry of judgment pursuant to CPLR 5001 and 5002.


June 25, 2001
New York, New York

Judge of the Court of Claims