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
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
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
, 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].
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.