New York State Court of Claims

New York State Court of Claims

PETT v. THE STATE OF NEW YORK, #2001-031-503, Claim No. 99192


Synopsis


Prisoner - bailment - claimant established liability of the State for the loss of his wedding ring. Claim granted in the amount of $65.

Case Information

UID:
2001-031-503
Claimant(s):
GARY J. PETT
Claimant short name:
PETT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99192
Motion number(s):

Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:

GARY J. PETTPRO SE
Defendant's attorney:

HON. ELIOT SPITZER
Attorney General of the State of New York
BY: LESLIE A. STROTH, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 15, 2001
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 away."[1]
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 say

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 Housing Unit.
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 to rebut
(Singer Co. v Stott & Davis Motor Express, 79 AD2d 227).
With regard to damages, the measure of recovery is fair market value. (See., e.g.,
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 332).

LET JUDGMENT BE ENTERED ACCORDINGLY.

November 15, 2001
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims




[1]Unless otherwise indicated, all quotes are from my trial notes.