New York State Court of Claims

New York State Court of Claims

SPEARMAN v. THE STATE OF NEW YORK, #2003-030-024, Claim No. 104354


Pro se inmate's bailment claim granted in part.

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:
August 5, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Darrell Spearman, the Claimant herein, alleges in Claim Number 104354 that Defendant's agents negligently lost or destroyed his personal property while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven). Trial of the matter was held at Green Haven on June 20, 2003.

Claimant testified that on August 17, 2000 he was "moved back to population from SHU [Special Housing Unit]."[1]
He immediately saw that out of the 11 bags packed up out of his presence on July 7, 2000 when he had been removed to SHU, only 10 remained. He was advised that the eleventh bag had contained contraband. A contraband receipt dated July 7, 2000 lists 66 cassette tapes; one (1 ) bucket; one (1) mirror; one (1) set of headphones; one (1) immersion heater; 25 incense sticks; and one (1) wooden spoon. [Exhibit 2]. Although the receipt asks for authorization for the disposal of the listed property, it does not contain the Claimant's signature, nor does it indicate that the various options for disposal of the property were discussed with the Claimant, and that the Claimant refused to make a choice. [See, Id]. Claimant testified that the fact that he was never given any options concerning disposal of his property was his particular concern.
An I-64 form attached to the present Claim, dated July 7, 2000, indicates that ten (10) bags of property were packed. [Claim No. 104354, Exhibit A].

When Claimant filed a grievance [Exhibit 6], the grievance committee concluded that he should "file a facility claim for reimbursement of loss
(sic) personal property." [Exhibit 7]. The facility claim filed lists some additional items - and excludes some others. [Exhibit A]. The facility claim includes one (1) bathrobe; one (1) hair brush; one (1) thermos bottle; Vaseline lotion; baby oil; four (4) tubes of toothpaste; six (6) bars of Irish Spring soap; and 39 cans of food. An immersion heater, 66 cassette tapes, and one (1) mirror are listed as well - conforming to the contraband receipt.
Claimant characterized the facility claim as "in limbo." A review of the papers attached to his present Claim shows that the matter was initially "disapproved" on November 1, 2000 because the "property [was] returned." [Claim No. 104354, Exhibit E]. It appears that the basis for that conclusion was that Correction Officer Middleton, in a memorandum dated October 25, 2000 to Sergeant R. Ward, reported leaving the contraband bag with SHU officers, who stored it in the back of Claimant's cell.
[Ibid]. When Claimant was discharged from SHU, the bag containing the confiscated items was returned to Claimant, and the "whereabouts of those items is unknown at this time." Similarly, in an internal memorandum dated November 24, 2000, Correction Officer C. Austin recites: "A BAG OF PROPERTY CAME TO SHU FOR DISPOSAL THE PROPERTY WAS NOT DISPOSED OF. WHEN SPEARMAN . . . WENT BACK TO POPULATION THIS BAG WAS GIVEN TO HIM ALSO." [Ibid].
Claimant appealed the facility determination, and it appears that as of April 20, 2001, the matter was still not very clearly determined. On that date, a memorandum was sent to Claimant at Superintendent Greiner's request by Sergeant R. Ward, stating: "On 7/7/00, the property you claim to be missing was delivered to SHU along with a disposal form for your signature. When the officer arrived (C.O. Middleton) he found you were at a hearing and left the property and the form with the SHU Officers. The property was mistakenly left behind your cell and returned to you upon release from SHU. Reception records indicated that ten (10) bags of property were packed up by C.O. Anspach and delivered to SHU. Per the written information provided to me by you, you indicated that eleven (11) bags were issued upon your release."
[Ibid]. This appears to be the last administrative "determination" concerning his claimed property loss.
Claimant produced package room records showing receipt by the facility of at least 14 cassette tapes from December, 1996 to February, 2000 [Exhibit 1]. Additionally, he testified that he had a permit for the headphones, and although there is a 25 cassette limit, he asserted he had been allowed to keep what cassettes he already had at the time he went to SHU. He stated that it was impossible to get receipts for these items since the facility did "not allow receipts inside the facility - everything goes through the package room. To even get package room receipts [like those in Exhibit 1] you have to go through a FOIL request." In an additional exhibit, Claimant has listed the "things missing", and has included values for the cassette tapes. [
See, Exhibit 5].
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 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).
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 Pierce, 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 York, Claim No. 94337, Collins, J., July 8, 1999].
In this case, Claimant has established that he had surrendered certain personal property items to New York State Department of Correctional Services (hereafter DOCS) custody and control, and that some property was lost while in their custody. The Court is satisfied that Claimant exhausted his administrative remedies.
See, Court of Claims Act §10(9); 7 NYCRR Part 1700. The Claimant presented as a credible witness, whose testimony was essentially uncontradicted. While there are some inconsistencies with respect to the actual number of bags packed, and the putative contents of the bag that appears to have been lost, at a minimum the contraband receipt [See, Exhibit 2], lists items that at one point were in DOCS' custody and control, and were then misplaced without following regulatory procedures for the disposal of property, and departmental directive. See, 7 NYCRR Part 724. The Court notes, however, that on the facility claim, not all the contraband items are listed. Accordingly, the credible evidence establishes a failure to exercise ordinary care with respect to the cassette tapes, the mirror, and the immersion heater. With respect to the other property items listed as missing in the present Claim, absent the applicable I-64 or some other evidence of delivery Claimant has not established that element with respect to these.
The Court finds that Claimant's testimony concerning the fair market value of the property lost, the notations on the contraband receipt, and the notations on his inmate claim form credibly support his loss with respect to the 66 cassette tapes, the mirror, and the immersion heater. Some of the items were more than one (1) year old at the time of the loss, thus depreciation is fairly applied to arrive at fair market value as required.
See, Schaffner v Pierce, supra, at 24. Accordingly, Claimant is entitled to damages in the amount of $200.00 plus appropriate interest from August 17, 2000. [§16 State Finance Law; Civil Practice Law and Rules § 5004].
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.

August 5, 2003
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.