New York State Court of Claims

New York State Court of Claims

HEROUARD v. THE STATE OF NEW YORK, #2003-030-021, Claim No. 106846


Pro se former inmate's negligence claim granted. Damages in the amount of $210.08 for mishandling registered mail.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
July 30, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Marc Herouard, the Claimant herein, alleges in Claim Number 106846 that Defendant's agents negligently mishandled correspondence directed to him by failing to deliver a registered letter received and signed for at Fishkill Correctional Facility (hereafter Fishkill). Trial of the matter was held on June 19, 2003.

Tracy Piper-Herouard, the Claimant's wife, testified that on or about July 23, 2002 she mailed him a registered letter containing a $200.00 money order, his birth certificate, his social security card, and a letter application with a résumé addressed to a law office to which he was applying for a job upon his release. She stated that the entire postal money order form - including the attached receipt - was enclosed in the envelope. A registered mail receipt shows that Ms. Herouard paid a total of $10.08 for postage, including payment for a return receipt, and indicates an article number RB610416070US. [Exhibit 4].

On cross-examination, she indicated that she did not cancel the money order when she learned from her husband that he had not received the letter. On redirect she said that she assumed that the letter would be found in due course, since there had never been a problem sending mail to the facility in the past. Additionally, having included the receipt portion of the money order in the envelope, she could not cancel the money order.

Claimant also testified that he did not receive the letter mailed by his wife and, upon making some enquiries at the mail room, learned that it was the practice of a motor vehicle operator employed by Fishkill, A. Smith, to sign all the certified return receipts at the post office without the attached letters. The letters were placed in the mail van and, after delivery to the facility, the driver would check to see if anything remained in the van, and end his shift. [
See, Exhibit 2].
An investigation by Lt. J. Pataro revealed that Mr. Smith had signed for a registered letter on July 29, 2002, article number RB610416070US, and delivered the mail containing this registered letter mixed in with the remaining mail to the Fishkill mail room [Exhibit 1]. The article number mentioned in the investigation report matches the receipt produced by Claimant's wife. [
See, Exhibit 4]. The lieutenant noted that reimbursement - if any - was due only to the sender; and indicated that the cost of postage, rather than any contents, would be all that was due. [Exhibit 1].
Claimant's facility grievance while approving the claim, would only approve the claim in the amount of $7.87, representing the cost of a registered letter. [Exhibit 3].

No other witnesses testified.

Under the inmate correspondence program, incoming correspondence that is sent registered or certified mail must be signed for by the inmate to whom it is addressed. [
See, 7 NYCRR §720.5(b)(1)].[1] The regulations imply generally that the mail is received in the facility mail room intact, and distributed from there.
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, et al. 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 York, 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 case 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).
The applicable regulations also provide that when property is last in the control of the New York State Department of Correctional Services (hereafter DOCS), DOCS is presumptively responsible for the loss. [
See, 7 NYCRR §1700.7(b)].
In this case, the evidence is uncontroverted that Mrs. Herouard mailed certain items to Fishkill via registered mail, return receipt requested, that an employee of DOCS signed for the registered letter, and that Defendant's agents failed to give the property to Claimant. The Court is satisfied that Claimant exhausted his administrative remedies.
See, Court of Claims Act §10(9); 7 NYCRR Part 1700. Value is established by the uncontradicted testimony of Mrs. Herouard concerning the contents of the letter, as well as the receipt for registered mail.
Accordingly, the Court finds that the State breached its duty to Claimant of ordinary care, and that this breach was the proximate cause of Claimant's damages. The Claimant has proved damages in the amount of $210.08, representing the value of the lost money order, and the total postage paid, plus appropriate interest from July 29, 2002

It is ordered that to the extent Claimant has paid a filing fee, it may be recoverable pursuant to Court of Claims Act § 11-a(2).

Let Judgment be entered accordingly.

July 30, 2003
White Plains, New York

Judge of the Court of Claims

[1] "(1) If the incoming general correspondence is registered or certified, the inmate to whom it is addressed shall sign a receipt for such correspondence. (2) If the inmate refuses to sign a receipt, the correspondence shall be returned to the Postal Service marked ‘refused.' " [7 NYCRR §720.5 (b) (1) and (2)].