4,5 Filed Papers: Claim, Answer
After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
Jason Huntley, the Claimant herein, alleges in Claim Number 106466 that
Defendant's agents negligently and/or intentionally lost or damaged his property
while he was incarcerated at Sing Sing Correctional Facility (hereafter Sing
Sing) and/or Shawangunk Correctional Facility (hereafter Shawangunk). He
asserts that on or about August 3, 2001 when he was confined to the Special
Housing Unit (hereafter SHU) at Sing Sing after a cell fire, he reviewed his
property in the presence of Investigator D. Holland of the Inspector General's
office. [See, Claim No. 106466, ¶4]. He does not indicate in his
claim which, if any, employees of the New York State Department of Correctional
Services (hereafter DOCS) supervised the packing, nor has he attached a copy of
an I-64 form to his claim on which the name of any DOCS employees involved in
securing Claimant's property might have been noted. In any event, the claim
further asserts that nine (9) bags of property were packed, and Claimant ". . .
signed acknowledging his property was present and contained in nine-bags, it was
not issued to him until the evening of 8/4/01, by Sgt. Vaughn." [Claim No.
Claimant alleges that on August 9, 2001 he was asked to push all his bags of
property outside the cell door, that it was going to be packed because he was
being transferred to another facility. Later that evening, Claimant was
transferred to Shawangunk. [Ibid, ¶¶5 and 6].
At Shawangunk, he was not given his property immediately, because he had not
been assigned a cell. On August 11, 2001 he first saw his property, which DOCS
employees indicated had been re-packed into three (3) bags. On that date, he
took some items he wanted and left. After he was assigned a cell, on August 24,
2001, he again went to the property area, where certain items were
In his Affidavit in Support of the present application, Claimant indicates that
the trial testimony of Correction Officers C. Benjamin, Timothy Humphrey, and
Michael Vanpelt is material and necessary to the prosecution of his claim. He
also seeks the issuance of a subpoena duces tecum to Fran Mulvenna, with
respect to certain documents, and an additional subpoena ad testificandum
to Investigator D. Holland, of the Inspector General's Office.
With respect to C.O. Benjamin, Claimant indicates she was the individual who
packed the property and completed the I-64 form at Sing Sing. C.O. Humphrey,
Claimant avers, witnessed the packing of the property at Sing Sing and co-signed
the I-64 form.
At Shawangunk, Claimant states, C.O. Vanpelt was the "employee who unpacked
claimant's property and authored official records concerning the matter."
[Affidavit in Support, Page 2].
Claimant states that Fran Mulvenna, also employed at Shawangunk, ". . . is the
employee who officially acknowledged receipt and filing of claimant's initially
submitted claim, compiled all of the official documents submitted during the
first level of said process, requested that claimant provide additional
information concerning the matter, and authored official records involved in the
case." He indicates that the subpoena duces tecum directed to her
specifies the documents he is seeking. It is noted that the subpoena asks for
"Personal property claim packet no. 55/2001, containing claim filed,
notification letter of it being received, 3 writings and affidavit submitted in
response to provide additional info, investigation report, and the official
writings gathered and relied upon to render first level determination . . ."
Finally, Claimant asks that a subpoena be issued to direct the appearance of
Investigator D. Holland, of the Office of the Inspector General, who "witnessed
the property in issue being packed, authored official records concerning the
matter, and acquired further material and relevant information of the case upon
interviewing claimant after the claim proceeding was initiated." [Affidavit in
Support, Page 3].
In her Affirmation in Opposition, the Assistant Attorney General argues that
Claimant has failed to indicate with reasonable particularity how the testimony
of each of these witnesses is material, relevant or necessary to the prosecution
of his Claim.
This is essentially a bailment claim alleging that a bailment was created
between Defendant and Claimant by the alleged delivery of Claimant's personal
property into the custody of Defendant's employees . The State has a duty to
secure an inmate's personal property. Claimant will need to establish a delivery
of property to the bailee, and the latter's failure to return it in an undamaged
condition."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).
Accordingly, the Court is satisfied, based upon the Claimant's affidavit, and a
review of the filed Claim that the testimony of Captain T. Humphrey and
Correction Officer C. Benjamin is material and necessary to the prosecution of
the Claim, and has executed the subpoenas directed to them. Additionally, the
Court has executed the subpoena duces tecum directed to Fran Mulvenna
with some editing to ensure that it is understood by the facility that Ms.
Mulvenna does not need to appear but rather the documents requested should be
sent, since her testimony is neither material or relevant. With the documents
and his own testimony the alleged failure to return the property or its return
in a damaged condition can be established without the necessity of securing the
attendance of C.O. M. Vanpelt. Similarly, the testimony of Investigator Holland
is not material, relevant or necessary given the Court's execution of subpoenas
directed to Captain Humphrey and C.O. Benjamin.
Procedurally, the witnesses allowed may be subpoenaed "in such manner as the
court . . . directs, if service is impracticable under . . . [other sections]."
Civil Practice Law and Rules §308(5). This provision is appropriately
applied in a case such as this one, involving an incarcerated claimant who wants
to subpoena a natural person. See, e.g., Onorato v Scully, 170
AD2d 803 (3d Dept 1991); Hanson v Coughlin, 103 AD2d 949 (3d Dept 1984);
Davis v Coughlin, 96 AD2d 682 (3d Dept 1983). Accordingly, the subpoenas
authorized herein may be served by certified mail, return receipt requested,
rather than personally. Since the witnesses subpoenaed are located at Sing
Sing, there is no additional cost involved in their attendance. It has been the
practice in this Court to waive the appearance fee under these circumstances,
therefore Claimant is not required to tender the statutory witness fees.
See, Civil Practice Law and Rules §8001(a).