Gary J. Pett ("Claimant") alleges that on September 10, 1998, two correction
officers at Collins Correctional Facility packed his personal property,
including his wedding ring, prior to taking him to the Special Housing Unit. He
claims that upon his release from the Special Housing Unit, his wedding ring was
missing. Claimant filed Claim No. 99192 on October 23, 1998 demanding $65.00
for the cost of the wedding ring and $200.00 in punitive damages. I held a
trial on this matter on September 18, 2001 at Wende Correctional Facility.
Claimant testified that the correction officers approached Claimant on
September 10, 1998 at his "cubicle" as he was preparing to take a shower. He
had removed his ring from his finger. The officers did not give him time to
lock his personal possessions in a locker or "put anything
Two weeks later, his wedding band and "some other stuff was gone." He stated he
paid cash for his wedding band in January 1998 in the amount of $65.00.
Further, he asserts that he did have a receipt for the ring, but in February
2001 he again lost personal property and the receipt was part of that property.
Claimant did not attach a copy of the receipt to his claim because he did not
have the receipt until after he filed the claim.
With regard to the lost receipt, I reviewed a Memorandum from Downstate
Correctional Facility dated September 4, 2001, from the Inmate Grievance Program
regarding a grievance filed by Claimant for lost property. The conclusion of
the internal investigation was that Claimant had indeed lost his legal papers
and that Claimant was not at fault. In addition, I accepted as Claimant's Ex. 1
a "Collins Correctional Facility Local Permit" authorizing Claimant to possess a
plain white metal wedding band.
On cross exam, Claimant stated that he put his ring in a tobacco can with pens
and pencils so no one would see it and steal it. He then put the can inside the
locker that is inside his cubicle area. When asked why he did not request that
the officers permit him to lock up his property before going to the Special
Housing Unit, Claimant stated that "they don't give you time to ask any
questions, you have to do as they say without saying nothing. You can't
anything." In fact, because he was getting ready to take a shower, he was
only partially dressed. Claimant asserts that the officers did not even give
him time to finish getting dressed before they escorted him to the Special
The State called no witnesses in defense of this matter.
Based upon the evidence submitted, I find that Claimant has established, by a
preponderance of the credible evidence, the possession of a plain white metal
wedding band on September, 10, 1998. No evidence was presented to establish the
ring was otherwise given away, destroyed or sent out of the facility by
Claimant. I further find that Claimant established the existence of a bailment.
The State's refusal or inability to return the bailed item on demand creates a
presumption of negligence by the Defendant, a presumption the State has failed
(Singer Co. v Stott & Davis Motor Express
, 79 AD2d 227).
With regard to damages, the measure of recovery is fair market value. (See.,
Phillips v Catania
, 155 AD2d 866; Schaffner v Pierce
, 75 Misc 2d
21, 24 ). Although Claimant was unable to produce the receipt showing possession
of and value of the ring, I find Claimant's excuse for not having the receipt
reasonable, and his testimony regarding the value of the ring credible.
Accordingly, Claimant is awarded the sum of $65.00 with interest from
September 10, 1998 until the date of this decision and thereafter to the date of
entry of judgment pursuant to CPLR 5001 and 5002. Claimant's request for
punitive damages is denied as this Court has no
authority to award such damages (Sharapata v Town of Islip
, 56 NY2d
LET JUDGMENT BE ENTERED ACCORDINGLY.