New York State Court of Claims

New York State Court of Claims

MARKS v. THE STATE OF NEW YORK, #2003-030-030, Claim No. 105987


Synopsis



Case Information

UID:
2003-030-030
Claimant(s):
DAVID MARKS
Claimant short name:
MARKS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105987
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
DAVID MARKS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELYSE ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
August 12, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
David Marks, the Claimant herein, alleges in Claim Number 105987 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 on August 29, 2001 he was in "general population"[1]
at Sing Sing, and then transferred to "HBC housing unit" - a Special Housing Unit (hereafter SHU) - until September 4, 2001 when they "brought . . . [his] property back." Everything was packed in nine (9) bags, and Claimant was given what property he was allowed in the SHU, and signed an I-64 form reflecting the inventory. [Exhibit 1]. On September 18, 2001 he was "packed up for transfer to Upstate Correctional Facility," (hereafter Upstate). The nine (9) bags are noted as being "condensed" into five (5) bags, on September 18, 2001, on the I-64 form first completed on September 4, 2001. [Exhibit 1]. He arrived at Upstate on September 21, 2001, "put in for his property, got the four (4) bags that came with . . . [him]" and found three (3) bags missing.
At his request, Claimant's counselor contacted Sing Sing and was advised that four (4) bags had been either shipped to him or came with him. Claimant filed a facility claim, which was denied on March 14, 2002. It was then that he filed a claim with the Court of Claims.

An I-64 form dated September 23, 2001 refers to the property inventoried at Upstate when Claimant arrived. [Exhibit 2]. Claimant stated that the difference between the listed items on the form signed on September 23, 2001 at Upstate, and the form signed on both September 4, 2001 and September 18, 2001 at Sing Sing shows that his property was missing. Specifically, he testified that the missing property consisted of clothing, a General Electric Super Radio, legal mail, between 100 and 150 personal photographs, a watch, a silver religious medal, religious books, and cassette tapes. He did not give any testimony concerning value, and the Claim asks for $2,500.00 without any specific reference to the value of the items claimed. He testified he was unable to furnish any receipts because all "paperwork" must have been with the missing property.

An additional I-64 form dated February 5, 2002 reflects items that were inventoried when Claimant was transferred from Upstate to Great Meadow Correctional Facility (hereafter Great Meadow), where he is presently incarcerated. On cross-examination, Claimant would not agree that this form mentions property that he claims was missing.

No other witnesses testified and no other evidence was submitted.

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 (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 York, Claim No. 94337, Collins, J., July 8, 1999].
While the Court found Claimant to be a credible witness he did not, unfortunately, establish by a preponderance of the evidence,
all the elements of a claim for bailment, even including particulars as to the value and age of the property claimed, as well as delivery.
Accordingly, Claim number 105987 is hereby dismissed in its entirety.


Let Judgment be entered accordingly.

August 12, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims



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