This bailment claim arose in September 1997, when Claimant was moved from the
general population of the Wende Correctional Facility (Wende) to that
institution's Special Housing Unit (SHU). Claimant alleges that items valued at
more than $500.00 were missing when his personal property was packed by
correction officers, without his being present, on September 4, and then
reinventoried in his presence on September 8, 1997.
At trial, Defendant presented an I-64 form, dated September 4, 1997 (Exhibit
A), which does not contain an acknowledging signature by Claimant. It indicates
that a total of five bags of his personal property was packed up on that date.
A second I-64 dated September 8, 1997 (Exhibit B), signed by Claimant,
indicates that some of his property was abandoned, at his request, and three
sealed boxes of property were put in storage. A separate document (Exhibit E)
lists the items he was allowed to keep with him in SHU. Finally, a photocopied
portion of a form dated October 16, 1997 (Exhibit D), which was signed by
Claimant, reads: "Before leaving WENDE SPECIAL HOUSING UNIT, I have personally
inventoried my property and found it to be in agreement with my I-64 Form."
With further questioning at trial, it became apparent that in signing this form,
Claimant was merely indicating that the three sealed bags had been returned to
him, with seals intact.
The items which Claimant alleges are missing were listed in his Inmate Claim
Form (Exhibit C), and a subsequent list contained in his Claim (attachment)
lists essentially the same items but with more detail about the source of those
items and their costs. On the earlier form, a total value of $487.63 is given ,
while the later list, which Claimant contends is more accurate, presents a total
value of $526.23. Claimant also presented a pack of receipts to establish his
ownership of, and the cost of, the items claimed to be missing.
The officer who inventoried Claimant's property on September 4, Officer F.
Jamison, confirmed that Claimant was not present when he inventoried and packed
his possessions. He testified that when he arrived at the cell, the door was
shut and the cell was secure. He explained the policies and procedures for the
task he performed and stated that he followed these faithfully, completing the
I-64 form at the same time that he was carrying out the inventory and packing.
Officer Jamison was asked to compare the two I-64 forms and concluded that, with
minimal exceptions, any items that were packed up when Claimant was moved to SHU
(Exhibit A) were also present and accounted for at the time of the second
inventory (Exhibit B). He also noted that a number of the more easily
identifiable items that Claimant alleged were missing -- for example, a Casio
watch and a bathrobe -- do not appear on either of the I-64 forms, and that some
of the more generic items -- for example, sweat pants and towels -- do not show
any reduction in number between the first and second listing. On
cross-examination, Officer Jamison acknowledged that he could not say whether or
not someone had had access to Claimant's cell prior to his arriving to inventory
the property, and he also confirmed that he was alone when he packed the
Officer J. Eberhardt testified that he inventoried Claimant's property on
September 8, in Claimant's presence, and that he completed the I-64 form marked
as Exhibit B. He testified that at an inventory of this nature, all of an
inmate's property would be spread out on a table, the inmate will be asked to
identify it, and then items allowed in SHU are taken for his use while in that
unit. The remainder of the property is placed in sealed bags. Officer
Eberhardt also identified Exhibit F, Claimant's SHU Chronological Sheet, which
indicates that on October 16, 1997, Claimant was transferred from SHU to a
general population cell and was accompanied by four bags of property. When
asked to explain the different numbers of bags at each stage of the proceeding,
Officer Eberhardt explained that Claimant arrived at SHU with five bags of
property; he then selected the property to keep in SHU and also identified some
property to be thrown out (noted on Exhibit B), leaving three bags' worth of
items to be stored. When he left the unit, he was given the three sealed bags
and added a fourth to carry property that he had in his SHU cell.
With the receipts and permits, Claimant established that, at some point, he
owned the property that he now claims was missing. There is nothing to
establish that he still had those items in his possession on September 4, 1997,
when his property was packed up by Officer Jamison. On September 8, he was
permitted to see all of the property that had been packed and there was no
evidence or testimony to the effect that he questioned the absence of the items
he now claims are missing. Some of these -- such as the watch, the bathrobe,
headphones, a bath rug and cardigan sweaters -- are items important enough that
they would be looked for, and large enough that their absence should be
immediately apparent. Because the itemization on the I-64 forms from September
4 and September 8 are in virtual agreement, Claimant should have been aware by
the latter date that there were items missing. Nevertheless, he signed a form
that contained a separate notation of items he was throwing out and the
identification numbers of the sealed bags, which acknowledged the inventory,
apparently without making any claim that some items were missing. His later
institutional claim (Exhibit C) was not filed until his release from SHU.
These situations in which all witnesses appear to be credible but,
nevertheless, their testimony directly contradicts, are extremely difficult to
decide. In the instant case, I must accept that the items which Claimant now
asserts were missing when he got all of his property back upon his release from
SHU in October were also missing on September 4, when the contents of Claimant's
cell were packed up. The I-64 forms provide evidence that they did not become
missing after that point. There is simply no evidence, except the fact of
Claimant's earlier ownership of the items, from which I can conclude that the
property in question was in the sole custody and control of the State, and thus
that a bailment existed (
Matter of Terranova v State of New York
, 111 Misc 2d 1089).
Accordingly, Claim No. 97758 is dismissed.
All motions not heretofore ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.