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.
, 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. [
, 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.
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
, 7 NYCRR §720.5(b)(1)].
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
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. [
, 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.
, 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
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.