Tyrone Houston, the Claimant herein, alleges in Claim Number 99385
that while he was an inmate at Sing Sing Correctional Facility (hereafter Sing
Sing), and sometime on or after October 25, 1997, an employee of the New York
State Department of Correctional Services (hereafter DOCS) stole his property.
Trial of the matter was held at Sing Sing on August 28,
Claimant relied upon the factual allegations contained in his claim, certain
real evidence, and his own testimony at trial. Claimant testified that "on
October 25, 1997...[he] was placed in administrative segregation due to a
conflict...[he] had with a Sergeant
He stated: "This sergeant intentionally went inside...[his] cell and stole all
of ...[his] magazines, ten packs of cigarettes and all...[his] underwear, as a
retaliatory act for speaking to a lieutenant...[about] the sergeant ordering his
staff to harass...[Claimant]." On the "Form 2064" (hereafter I-64), completed
as a part of his transfer to administrative segregation, the three categories of
property alleged to be missing are noted as "not in property". [Claimant's
Exhibit "1", I-64 "Personal Property Transferred" dated 10/25/97 and 10/27/97].
They are listed in the claim as: "...10 packs of Newports, 9...magazines, and 9
brand new sets of ‘fruit of the loom' underwear." [Claim No. 99385, Page
1, Paragraph 1].
He filed a property claim on October 27, 1997, indicating that he "had
receipts", and placing the value of the cigarettes at $18.50; the 9 magazines at
$41.00 and the 9 pair of underwear at $39.59. [Defendant's Exhibit "A", Inmate
Claim Form and Claim Investigation Report]. When the property claim was filed,
Correction Officer P. Rogers, the Claims Officer, wrote a form letter to
Claimant advising him to file a Notice of Intent to File Claim with the Court of
Claims within the ninety (90) day period, and to provide the "I-64 form from
pack up." [Claimant's Exhibit "2", Memorandum To: Houston; From: Rogers]. The
investigation report, dated November 11, 1997 stated: "C.O. Gotham verified that
the claimed items were in fact missing from the inmate's property upon arrival
in HBC. The items are listed on the I-64 form. The inmate needs to produce
receipts for the items in order to be reimbursed. The claim is rejected pending
those receipts." [Ibid.]
He testified that in the normal course, his property would be packed up, placed
in the office of the Officer in Charge (OIC), and then taken to the OIC office
at the Special Housing Unit (SHU). The OIC for his original block was Sergeant
Algiere, with whom he claimed a conflict. He asserted that rather than being
transferred from one OIC's office to the next, the property was left out "on the
OIC flat" for "two whole days by Sgt. Algiere." Although he did not observe the
packing up himself, he stated that he had two witnesses who were ready to
testify at the internal claim hearing concerning their observations of the way
his property was handled.
Claimant testified that he wrote to C.O. Rogers requesting the status of his
property claim, but never received a response. On January 26, 1998, he filed a
grievance, alleging C.O. Rogers failed to investigate his claim. [Claimant's
Exhibit "3", Inmate Grievance Resolution Committee Response dated February 5,
1998; Inmate Grievance dated January 26, 1998]. "In the grievance," he said,
he "did everything he'd been asked to do: file a Notice of Intention with the
Court of Claims, produce the I-64 and produce witnesses yet it was not
resolved." On February 5, 1998, the Inmate Grievance Review Committee
indicated: "...The claims procedure has it's own appeal mechanism, and as such
is non-grievable per Directive #4040. It is beyond the purview of the grievance
mechanism to institute ‘corrections and disciplinary actions' against
staff...Grievant has filed a claim, and has been advised that his claim is still
pending. Investigations take time. Grievant will be notified when a
determination is reached via the claims department, and if unsatisfied, may then
appeal that decision through the proper appeal procedures." [Claimant's Exhibit
Claimant testified that "as of November 27, 1998 ... [he] still had not heard
about the property claim."
Claimant presented receipts from several sources. With respect to the
cigarettes, he had a receipt showing a purchase of 12 packs of Newport
cigarettes on October 8, 1997 at $1.85 per pack. [Claimant's Exhibit "4",
Receipts and Disbursement Refund Requests, 10 Pages]. Internal DOCS
disbursement requests showed checks issued to publishing companies, on
Claimant's behalf, for the purchase of magazines for April 13, 1994 ($6.00), May
23, 1994 ($2.00); July 31, 1995 ($5.95); January 31, 1995 ($8.00); April 9, 1995
($5.95); April 24, 1996 ($5.95); November 7, 1996 ($5.00); July 8, 1997 ($5.95);
August 20, 1997 ($5.95). [
.] Finally, while Claimant could not present receipts for the
underwear, he submitted a sales circular to establish the replacement cost of
same, at $5.25 for a package of three pairs of underwear. [Claimant's Exhibit
"5", Jack L. Marcus Sales Circular dated June 30, 2001].
No other witnesses testified.
This claim is one alleging 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.
, Claflin v Meyer
, 75 NY 260 (1878);
Ahlers v State of New York,
(Claim No. 82543, unreported decision filed
December 23, 1991, Corbett, P.J.). The State has a duty to secure an inmate's
personal property. Pollard v State of New York
, 173 AD2d 906 (3d Dept.
1991). A delivery of property to the bailee, and the latter's failure to return
it, satisfies Claimant's burden of establishing a prima facie
of negligence. The bailee is then required to come forward with evidence to
show it exercised ordinary care. Weinberg v D-M Rest. Corp
., 60 AD2d 550
(1st Dept. 1977); See
, Board of Education v Herb's Dodge Sales
, 79 AD2d 1049,1050 (3d Dept. 1981).
With respect to value, Claimant must satisfy the court of the fair market value
of the items in question.
Phillips v Catania
, 155 AD2d 866 (4th Dept. 1989); Schaffner v
, 75 Misc 2d 21 (Nassau Co. Dist. Ct. 1973). Receipts are
generally the best evidence of fair market value, although uncontradicted
testimony concerning replacement value is acceptable.
Here, Claimant established by his credible testimony, that certain personal
property left his control, and was surrendered to the control of DOCS. No
explanation was offered for the loss. There was no evidence contradicting
Claimant's underlying assertion that there had never been a disposition of his
inmate personal property claim.
The Court is satisfied by a preponderance of the credible evidence that the
defendant should be liable for Claimant's loss. The credible evidence
established the following values for his losses: $18.50 for cigarettes; $50.75
for magazines and $15.75 for underwear. Accordingly, Claimant is awarded
damages in the sum of $85.00 plus interest at the statutory rate of 9%, §16
State Finance Law, from October 25, 1997, except for an appropriate suspension
of interest pursuant to §19(1) Court of Claims Act.
Let Judgment be entered accordingly.