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]."
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.
]. Claimant testified that the fact that he was never given any
options concerning disposal of his property was his particular
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
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
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.
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."
. 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. [
, 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
, 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
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
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 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
, 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
, 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.
, Schaffner v Pierce
, 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.