New York State Court of Claims

New York State Court of Claims

WAUL v. THE STATE OF NEW YORK, #2004-009-134, Claim No. 102787


Synopsis


Claimant, proceeding pro se, was awarded the sum of $500 on his bailment claim.

Case Information

UID:
2004-009-134
Claimant(s):
ANDRE WAUL
Claimant short name:
WAUL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102787
Motion number(s):

Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
ANDRE WAUL, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
December 9, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant, an inmate proceeding
pro se, alleges negligence on the part of the State in losing certain items of his personal property when he was transferred from Oneida Correctional Facility to Woodbourne Correctional Facility in July, 1999.
At the trial of this claim, held at Marcy Correctional Facility on August 12, 2004,[1]
claimant testified that he was transferred from Oneida Correctional Facility to Woodbourne Correctional Facility on July 9, 1999. At the time of this transfer, claimant's belongings were packed into five draft bags. Four of these bags accompanied claimant to Woodbourne Correctional Facility, while the fifth bag was left with employees at Oneida Correctional Facility for mailing. Claimant testified that he did not receive any prior notice of this transfer, and therefore his personal property was not packed in accordance with departmental regulations, and no inventory ("I-64") form was completed. Claimant further testified that $17.73 was at some point deducted from his personal account for the cost of postage in mailing these items of personal property to him at his new facility. Additionally, claimant testified that the contents of this fifth bag has been divided into two separate bags or packages for mailing purposes by employees at Oneida Correctional Facility.
Under cross-examination, claimant testified that in addition to pursuing this lost property claim administratively, he also contacted representatives of the United States Postal Service in an attempt to locate the two bags or packages which had been supposedly mailed. Eventually, claimant testified that he received a package of papers and books from the United States Postal Service's Mail Recovery Center in Atlanta, Georgia, containing approximately 15 pounds of materials, which was designated as the second of two packages originally destined for Woodbourne Correctional Facility. Claimant also received some miscellaneous papers at different times from the United States Postal Service, but never received the first package of materials that supposedly had been mailed from Oneida Correctional Facility to Woodbourne Correctional Facility.

According to claimant's testimony, the lost items of personal property consisted of transcripts from a prior criminal trial, a number of text books and reference books, and college degrees and program certificates.

A bailment is created when personal property is delivered into the possession of another with the understanding, either express or implied, that the property will be redelivered to the owner in the same condition (
Claflin v Meyer, 75 NY 260). As a bailee of property, the State has a duty to secure an inmate's personal property (Pollard v State of New York, 173 AD2d 906). In order to establish a prima facie case of negligence, a claimant must establish that the property was delivered to the defendant, and that the defendant failed to return it in the same condition. The State's refusal or inability to return the bailed items on demand creates a presumption of negligence, and the burden shifts to the State, which must then come forward with proof to overcome this presumption (Weinberg v D-M Rest. Corp., 60 AD2d 550). The State may thereby overcome this presumption if it can prove that the loss was not attributable to its negligence (Singer Co. v Stott & Davis Motor Express, 79 AD2d 227).
At trial, claimant presented credible, and uncontroverted, testimony establishing, without contradiction, that he surrendered certain items of personal property to personnel of the Department of Correctional Services at Oneida Correctional Facility, and that some of these items were lost during claimant's transfer to Woodbourne Correctional Facility. Although no "I-64" forms were provided to the Court to establish the loss of specific items, claimant's testimony established, to the satisfaction of this Court, that no such form was prepared by the employees at Oneida Correctional Facility who were responsible for initially packing those items for shipment.

Based upon the cross-examination of claimant at trial, the State apparently contends that it was not responsible for claimant's loss, in that the responsible party should be the United States Postal Service. Defendant relies upon the fact that claimant received certain items from the Mail Recovery Center of the Postal Service as proof that claimant's personal property had been transferred to the custody and control of the Postal Service when the loss occurred.

As previously noted above, claimant testified at trial that the items of personal property to be shipped were packed, in his presence, into one draft bag for mailing purposes. Additional evidence supports claimant's contention that such items were subsequently divided and placed into two bags or packages for mailing, apparently outside of claimant's presence. The fact that claimant ultimately received the contents from one package does not establish, without independent proof, that both packages were in fact mailed by personnel at Oneida Correctional Facility. Defendant presented no proof whatsoever that both bags or packages were placed in the custody and control of the United States Postal Service. Furthermore, and as also pointed out by claimant, defendant did not establish that the packages were securely and properly packaged for mailing purposes, even if it is assumed that both packages were mailed.

Accordingly, based upon his testimony, the Court finds that claimant has established, by a preponderance of credible evidence, the loss of certain items of his personal property while in the possession of the State, and that the State is therefore liable to claimant for his loss.

With respect to value, claimant must satisfy the Court as to the fair market value of the lost items (
Phillips v Catania, 155 AD2d 866). Receipts are the best evidence of fair market value, but claimant did not produce at trial any receipts for the lost items. Without receipts, the Court must therefore determine, based upon the proof at trial, the value of such lost items. Even though claimant was a most credible witness, there was a paucity of evidence presented from which this Court could establish fair market value. Accordingly, after considering claimant's testimony concerning his lost property, the credible evidence has established a total value of the lost items at $500.00.
Accordingly, based upon the foregoing, claimant is entitled to an award of $500.00, with appropriate interest from July 9, 1999. Furthermore, 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.

December 9, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] The trial of this claim was originally scheduled for June 18, 2003, but was adjourned when the Department of Correctional Services failed to timely deliver claimant's legal papers for the trial.