Abel Hernandez ("Claimant") filed claim number 101775 on January 14, 2000,
alleging that Defendant is responsible for the loss of Claimant's personal
property valued at $1,937.90. I held a trial on this matter on March 12, 2003,
at Wende Correctional Facility ("Wende").
Claimant testified that on September 4, 1999, he was placed in the Special
Housing Unit ("SHU") for a disciplinary matter unrelated to this claim. After
being taken to SHU, his personal belongings were packed and inventoried by
correction officers unknown to Claimant at that time. On September 7, 1999, he
was permitted to inspect his stored property. At this time, he determined that
many of his personal belongings were missing.
Defendant denies that certain items of Claimant's personal property were lost
while in its possession, and also argues that the value of the property
allegedly missing is not as great as Claimant represents.
Claimant testified that an I-64 form was prepared by Defendant after he was
taken to SHU. Another was prepared on September 7, 1999, the day he was
permitted to inspect his property. These documents were admitted into evidence
as exhibits 1 and 3, respectively. Neither of these documents reflect the
property that Claimant alleges was lost by Defendant. Claimant also introduced,
however, an I-64 form prepared upon his arrival at Wende from Comstock
Correctional Facility and was dated July 24, 1999, just over one month earlier.
All of these documents were prepared by Defendant. According to Claimant, the
earlier I-64 (exh. 2) reflects the property that was lost and somehow
unaccounted for in the subsequent I-64s. This document does demonstrate that
Claimant was in possession of the subject items at the end of July 1999.
The State has a duty to secure an inmate's personal property (
Pollard v State of New York
, 173 AD2d 906). Claimant's burden
of establishing a prima facie case of negligence is satisfied once he
demonstrates the delivery of property to Defendant, and the Defendant's failure
to return it in the same condition. The burden then shifts to Defendant to come
forward with evidence to "overcome the presumption" (Weinberg v D-M Rest.
, 60 AD2d 550). Defendant argues in this regard that, during that
month interval, Claimant may have given away or traded these items to other
inmates. While this is, of course, possible, Claimant's point made during
cross-examination of Defendant's witnesses is well taken. Many of the items
missing were personal in nature and would be of value only to Claimant, such as
personal photographs. It appears to me very unlikely that these items were
either given away or traded. I find, therefore, that Claimant has succeeded in
establishing that the listed items of his personal property were lost while in
the possession of Defendant. I find that Defendant is liable to Claimant for
the loss of this property (see
7 NYCRR § 1700.7; see also
Weinberg v D-M Rest. Corp
., 60 AD2d 550,
Claimant is entitled to recover the fair market value of the lost property
see Phillips v Catania
, 155 AD2d 866). In addition to the
exhibits mentioned above, Claimant testified at trial that he also had receipts
demonstrating the purchase price of his missing property, but that Defendant had
not permitted him to appear at trial with his necessary paperwork. I gave
Claimant an opportunity to submit these receipts by mail on or before April 15,
2003. Claimant did so and, upon receiving no objection from Defendant, I hereby
admit these 4 receipts into evidence as exhibit 4.
Based upon Claimant's testimony and the other evidence before this Court,
Claimant is entitled to an award of $150.00 for his lost property, together with
the appropriate interest from September 7, 1999 until the date of this decision,
and thereafter to the date of entry of judgment pursuant to CPLR 5001 and 5002.
It is further ordered that, to the extent that Claimant has paid a filing fee,
it may be recovered pursuant to Court of Claims Act §11-a(2).
LET JUDGMENT BE ENTERED ACCORDINGLY.