Bailment - Inmate claim is granted and damages of $190.00 awarded for typewriter and cross and chain. Court held items were not contraband and regulations did limit damages.
|Claimant short name:||VENTIMIGLIA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RICHARD E. SISE|
|Claimant's attorney:||SEBASTIAN VENTIMIGLIA, pro se|
|Defendant's attorney:||HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. Resnick, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 1, 2002|
|See also (multicaptioned case)|
This claim alleges that on May 27, 2000, as Claimant was being processed upon arrival at Eastern Correctional Facility, he discovered that his personal word processor had been severely damaged while in Department of Correctional Services (DOCS) possession. Furthermore, as part of this processing, he was asked to turn over certain items -- including a gold cross and chain -- so that permits could be issued. On May 31, 2000, facility officials returned other personal items, but failed to return to him the gold cross and chain. Claimant filed and served this claim on August 21 and 23, 2000, respectively. Claimant was granted partial summary judgment, the Court finding liability as to the personal word processor, and holding that question of fact existed as to Claimant's possession of the cross and chain. The Court further held that Claimant failed to establish a basis for the Court to determine the value of each item (Ventimiglia v The State of New York, Claim No. 102952, Motion No. M-63305, UID #2000-028-0536, Sise, J., June 5, 2001). This trial ensued at which Claimant and two correction officers testified.
There was no dispute that Claimant arrived at Eastern CF with the cross and chain and that the Defendant took possession of the cross and chain, inter alia. It was equally undisputed that the cross and chain were missing, and hence not returned to the Claimant when he went to the package room to retrieve them. The State's inability to return the bailed item on demand creates a presumption of negligence by the Defendant (Singer Co. v Stott & Davis Motor Express, 79 AD2d 227). CO Haugen testified he did not consider the cross and chain contraband. CO Haugen further testified that he took possession of the at-issue items not as contraband, but for the purpose of issuing new local permits.(1) The Court finds the Defendant has failed to establish the at-issue items were contraband; and therefore, these items were properly possessed by Claimant (see, Patterson v State of New York, Ct Cl, Claim No.94538, UID#2000-029-020, Mignano, J. September 26, 2000)(2) . Consequently, the Defendant is answerable to the Claimant in damages for the cross and chain.
The crux of this dispute lies in the value to be awarded as damages for both the typewriter and cross and chain. Defendant argues that "claimant is entitled to no more than the value limits established by the regulations" (Defendant's Post-Trial Brief, p.3). Claimant urges the Court to award the actual value of the items because the Defendant failed to abide by its regulations and permitted him to possess a religious medal and chain in excess of the stated value limits (Claimant's Post-Trial Brief, p.2).
Claimant points to the case of Meaney v State of New York as authority for the proposition that the regulation, 7 NYCRR §724.4, does not fix a limit on the State's liability. The Defendant attempts to distinguish Meaney by noting that the at-issue items in this claim were received through the package room and the items were not delivered for safekeeping but rather for the issuance of new permits, facts not present in Meaney (Defendant's Post- Trial p. 6). The entire Appellate Division decision in Meaney follows:
The State of New York appeals from a judgment awarding the sum of $497.14 to claimant for the loss of personal property that he had placed in the possession and control of prison officials at Attica Correctional Facility. There is no merit to the State's contention that its regulation (7 NYCRR 724.4) limits the amount an inmate may recover for a gold chain and mezuzah to $50. That regulation describes items that may be received by an inmate through the package room of a correctional facility (see, 7 NYCRR 724.1) and contains no language restricting the amount an inmate may recover for the loss of property delivered to prison officials for safekeeping. Further, the record is devoid of evidence that the subject items were received in the package room at Attica.
Meaney v State of New York, 179 AD2d 1056. Surprisingly, Commentators have read this decision as placing no limit on the State's liability, "even if [the] items in question had been received through [the] package room" (83 NY Jur 2d Penal and Correctional Institutions § 126 [Cumm. Supp, 2001]; see also, 60 Am Jur 2d, Penal and Correctional Institutions § 54).
The Court reviewed the underlying trial decision of the Hon. Albert A. Blinder seeking further elucidation of the holding; to no avail as Judge Blinder wrote "the Court summarily rejects the argument of the State that it can absolve itself from liability by compelling inmates to waive a value in excess of $50" (Meaney v State of New York, Claim No. 74856, unreported decision, Blinder, J. fld July 5, 1990, sgd. June 29, 1990).
A review of the underlying facts in the Meaney trial decision is however helpful in dispelling the Defendant's distinctions. In Meaney, the inmate was transferred from Groveland Correctional Facility to Attica for a Court appearance. Upon arrival at Attica, he was required to surrender his jewelry, for which he had a "local permit". The jewelry was to be returned to Meaney upon his return to Groveland. Meaney acknowledged that he was aware of the value limitation and that he had signed a "local permit" for Groveland fixing the maximum value of his religious jewelry at $50 (Id). Against this background, the Court can discern no meaningful distinction between the manner in which the Defendant in the instant claim, and the Defendant in Meaney came into possession of the subsequently lost jewelry.
The at-issue regulations limiting the possession of certain items and placing value limits upon said items has been upheld as being consistent with maintaining security, order and discipline in prison (see, Flowers v Sullivan, 149 AD2d 287, 295-296). The consequences of misstating an item's value is a risk to be assumed, not by the Defendant as Claimant suggests, but rather by the Claimant. To permit otherwise effectively emasculates a legitimate regulation. Accordingly, the Court declines to follow Meaney and finds that the maximum value claimant may recover is limited by 7 NYCRR § 724.4.
To award compensation for these losses, the Court must determine from the credible evidence presented at trial, the fair market value of the missing property, which includes consideration of depreciation (Schaffner v Pierce, 75 Misc 2d 21, 24). The Court finds the cross and chain to be worth the maximum of $50.00.(3) With respect to the typewriter, the Court finds credible claimant's testimony that the machine had a value of $149.00 on October 2, 1998. Allowing for depreciation between that date and the date of loss, the Court finds the value of the typewriter to be $140.00.
Claimant is awarded the sum of $190.00 with interest from May 27, 2000, and to the extent has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-(a) 2.
Let judgment be entered accordingly.
February 1, 2002
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims
1. Inmates are allowed to possess certain items provided a local permit is issued for the item (see, 7 NYCRR § 724.3). The value of the items is subject to limitation (see, 7 NYCRR § 724.4 (g) (27) [typewriter] and § 724.4 (l) (6) [religious medal and chain]).
2. Defendant introduced a trail of local permits (Exhibit B) going as far back as 1990 referring to another cross and chain, which Claimant testified he replaced with the at-issue jewelry in 1998.
3. The Court rejected Claimant's introduction of receipts showing the value of the jewelry at $699.00 and $469.00 for the chain and cross, respectively, as violating the hearsay rule. Notwithstanding the Court's evidentiary ruling, Claimant satisfied the Court that the jewelry had a value in excess of the regulation limits.