Harold J. Shell, Jr., the Claimant herein, alleges in Claim number 103998 that
Defendant's agents negligently lost or destroyed his property while he was
incarcerated at Green Haven Correctional Facility (hereafter Green Haven).
Trial of the matter was held at Green Haven on June 13, 2003.
Claimant testified that in "February or March of 2000...[he] received a
typewriter from Smith Corona that...[his] mother had
In the last week of April the medical department advised that he would be
leaving the facility for St. Agnes Hospital for surgery to his right femur to
"have a rod removed." On the evening before his transfer, he packed up his cell
with a bag given to him by a correction officer - including the typewriter, the
ribbon already in it, two other used ribbons and two new ribbons - placing these
items in a plastic bag on the top of his locker. All the bags were tied up.
"All the officers had to do was come in and take it, and put it in storage." On
May 2, 2000, an I-64 form was completed by two correction officers. [See
Exhibit 1]. The form indicates that the Claimant was not present when it was
completed and the items were taken to storage. The form does not indicate that
there was a typewriter among the Claimant's possessions. The Court notes,
however, that on an I-64 form appended to the Claim, a typewriter as well as a
hot pot are noted as property contained within the 7 bags of property packed,
and the form indicates that the Claimant was not
Claimant returned to the facility hospital at Green Haven on May 3, 2000 after
his surgery, where he remained until June 23, 2000. When he went to the
reception area to retrieve his property, he was unable to review the contents
there, signed for the property without looking at it, and returned with the bag
to his cell. The typewriter was broken, in that it "hummed/buzzed while in the
off position, [and] several special features...[didn't] work...." [Claim No.
103998, ¶2]. Claimant also testified that there were typewriter ribbons
missing and his hot pot was damaged.
Claimant produced a local permit for the typewriter showing that the value
ascribed to it at the time it was received in the package room was $139.00
, Exhibit 4], as well as receipts showing its value as $139.00.
[Exhibit 5]. Receipts for the typewriter ribbons show a value of $21.00 for two.
. The hot pot, he testified, was $11.99 when new, and was
approximately 2 years old at the time it was damaged.
On cross-examination, Claimant reiterated that it was he who placed the
typewriter in the plastic bag - not correction officers - but indicated that
the facility did not provide boxes within which fragile items could be packed
although they should have. He confirmed he did not have the typewriter case the
typewriter came in. He could not say whether the typewriter actually typed,
since all he did was plug it in and note that it was broken because of the
sounds and the lack of special features. He did not attempt to send it out to be
The facility claim Mr. Shell filed has never been determined. In a prior
Decision and Order of the Court, the defense of failure to exhaust
administrative remedies was stricken, thus the claim filed herein is timely.
See Shell v State of New York
, Claim No. 103998, Motion Nos.
M-65424, CM-65936 (Waldon, J., March 4, 2003)].
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 .
See generally Claflin v Meyer
, 75 NY 260 (1878); Ahlers v State
of New York,
Claim No. 82543, Corbett, P.J., December 23, 1991. The State
has a duty to secure an inmate's personal property. Pollard v State of New
, 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
case of negligence. The bailee is then
required to come forward with evidence to "overcome the presumption."
Weinberg v D-M Rest. Corp
., 60 AD2d 550 (1st Dept 1977). "Where a
bailment is created, a showing that the . . . [property was] delivered to the
bailee and returned in a damaged condition establishes a prima facie
of negligence and the burden shifts to the bailee to demonstrate that it
exercised ordinary care . . . [citation omitted
]" Board of Educ. of
Ellenville Cent. School v Herb's Dodge Sales & Serv.
, 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 the best
evidence of fair market value, although uncontradicted testimony concerning
replacement value may also be acceptable. Personally meaningful items, such as
photographs, have no fair market value. [See Benton v State of New
, Claim No. 94337, Collins, J., July 8, 1999].
In this case, Claimant has established that he surrendered some personal
property items to DOCS' custody and control, and that some property was damaged
or lost when he signed for its receipt. This is a close question here, since
Claimant is the one who placed the typewriter in the bag. The Court finds,
however, that in accordance with its own regulations, Claimant was owed a duty
of care by the State with regard to his surrendered property, that there was
delivery and a failure to exercise ordinary care over the Claimant's
7 NYCRR Part 1700; and Exhibit 2]. The Claimant presented
as a credible witness, whose testimony was essentially uncontroverted.
Unfortunately, Claimant did not quantify what the cost of repairing the
typewriter might be - or if it even could be repaired - and essentially claimed
a total loss, without having verified that he could not type on the typewriter.
Nonetheless, an electronic instrument that buzzes and hums while it is in the
off position is one to be avoided, however, so Claimant understandably did not
explore that option.
Accordingly, the Court is satisfied that Claimant should be afforded some
amount of damages for the loss of use of the typewriter, the loss of his
typewriter ribbons, and the damage to his hot pot. The credible evidence
established the following values for his losses: $100.00 for the loss of use of
the typewriter; $9.00 for the hot pot; and $21.00 for the loss of the
Accordingly, the Claimant is hereby awarded damages in the amount of $130.00
plus appropriate interest from June 23, 2000.
It is ordered that to the extent Claimant has paid a filing fee, it may be
recovered pursuant to Court of Claims Act § 11-a(2).
Let Judgment be entered accordingly.