Victor Ortiz, the Claimant herein, alleges in Claim number 106172 that
Defendant's agents negligently lost or destroyed his property while he was
incarcerated at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of
the matter was held at Sing Sing on June 27, 2003.
Claimant testified that he was transferred from Sing Sing "to SHU in
on December 7, 2001, arriving with only one (1) bag of property when there
should have been four (4) bags. He stated he did not discover that any property
was missing until after he had signed the I-64 inventory forms acknowledging
receipt of his property. [See
, Exhibits 4 and 5]. He asked for
reimbursement for personal photos, a military jacket ($55.00), a pair of
sneakers ($49.00), a mustache trimmer ($23.00), a hot pot ($14.00), a fan
($16.00); a blanket ($43.00); thermal underwear ($40.00); boots ($50.00); a
scarf and pair of gloves ($24.00); a radio ($50.00); and a cap ($8.00). He
provided three (3) local permits, all dated October 11, 2001, for,
respectively, a West Bend hot pot valued for $14.25 [Exhibit 1]; a Norelco
beard and mustache trimmer valued for $19.75 [Exhibit 2]; and a Holmes fan
valued for $10.75 [Exhibit 3].
On cross-examination, Claimant indicated that he had filed two facility claims:
one at Green Haven Correctional Facility (hereafter Green Haven) - where he had
been "transferred after Malone" - and one at Sing Sing. When he filed at Green
Haven in March, 2002, he was told it was "too late" and that he should pursue
his claim at Sing Sing. The Sing Sing claim was denied as well, for failure to
attach receipts, but Claimant indicated he was unable to obtain copies of
receipts. It is unclear when any facility claim may have been filed at Sing
Sing, and no copies of any facility claims were offered in evidence.
There is some confusion in the Claimant's narration. An I-64 completed on
December 7, 2001 appears to reflect a transfer within Sing Sing to Special
Housing Unit (hereafter SHU), and is more consistent with the facts asserted in
the Claim. [
, Exhibit 6]. In his Claim, he indicates that he was held in SHU from
December 6, 2001 to February 17, 2002. There is no mention of a move to
Malone. Reviewing the I-64 forms submitted only adds to the confusion. The only
one referable to Sing Sing is the I-64 dated December 7, 2001, noted above, that
reflects the internal transfer. The other two I-64 forms are dated March 6,
2002 and concern a move from Upstate to Green Haven. [Exhibits 4 and
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 (New York 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 not established by a preponderance of the credible
evidence that a bailment was created in the first instance. Assuming that the
I-64 form dated December 7, 2001 reflects any property delivered into the
custody of the Defendant's agents, there is no objective showing that such
property was not returned. [Exhibit 6]. The subsequent I-64 forms are not
pertinent to this Claim. [See, Exhibits 4 and 5].
Accordingly, Claim Number 106172 is hereby dismissed in its entirety.
Let Judgment be entered accordingly.