Louis Barbieri, the claimant herein, alleges in Claim Number 101702 that
Defendant's agents either intentionally or negligently lost or destroyed his
property while he was incarcerated at Green Haven Correctional Facility
(hereafter Green Haven). Trial of the matter was held at Green Haven on
November 21, 2003.
Claimant testified that on June 24, 1999 a facility-wide search was undertaken
by correction officers. Correction Officer Hormozy was the officer assigned to
search Claimant's cell. When the search was completed, Correction Officer
Hormozy seized 28 books, 20 magazines, various personal items such as food and
"ordered [claimant] to destroy the items or receive a disciplinary
Claimant asserted he was not given the option of sending the items home, as
provided in "directives numbered 4913 and 4910, pertaining to the allowable
disposition of contraband." Aware that "all direct orders must be obeyed
regardless of their legality," claimant did as instructed intent upon seeking
administrative review thereafter. He stated that Officer Hormozy told him that
all contraband or excess property was to be destroyed per the direction of
Deputy Superintendent Schneider, and that if he were to refuse, he would be
accused of disobeying a direct order.
A completed standard form for the disposal of personal property was admitted
into evidence. [Exhibit 1]. The form provides a place for the correction
officer to indicate the property to be disposed of and presents four (4)
different alternatives for the disposition of the property. Although his
signature appears on the form authorizing the destruction of his books, Claimant
reiterated that he was not given the opportunity to select any option but
Claimant filed a facility claim [Exhibit 2], which was denied.
Claimant testified that 25 of the 28 books seized were not contraband because
they were educational materials for a course he had been teaching at Green
Haven. The remaining 3 books, he claimed, were library books. He also stated
that a painting he intended to send to his daughter was also seized, and would
have been destroyed but for the intervention of an "outside art teacher." The
teacher, he said, saw the painting in "the pile" and "said something," and only
then did Correction Officer Hormozy allow the painting to be mailed out.
On cross-examination, Claimant conceded that he had not indicated on his
facility claim that most of the books seized should have been exempt as
educational materials. He explained, however, that because he was not given an
opportunity to review the books he wasn't aware of which books they were when he
filed the facility claim. Nonetheless, he conceded that he had not paid for any
of the books, nor did he have any receipts or other evidence of value. He stated
that "inmates are not allowed" to retain receipts of items received from the
package room, but acknowledged that when property is received through the
package room a record is made and "kept in the inmate's file." There was no
indication that he attempted to obtain these documentary materials.
Similarly, Claimant indicated that the other items he claims were taken at the
time of the facility search, including a fan, a beard trimmer, a net bag, an
antenna, a heating immersion device, and assorted food items were purchased
through the commissary, but he did not produce a record of his inmate account or
a commissary list in order to establish ownership and value.
No other witnesses testified and no other relevant evidence was produced on
Claimant's direct case.
Correction Officer Hormozy also testified briefly for the Defendant. He
confirmed that on June 24, 1999 a facility-wide search was underway, and that he
and one other officer were conducting searches of inmates' cells, including that
of Claimant. He recalled finding 28 extra books and a painting in Claimant's
cell, that were deemed contraband. He recalled explaining the different options
to the Claimant, collecting the books in a box, directing Claimant to go
through the box to determine which books to keep, and completing a contraband
receipt in Claimant's presence. [Exhibit A]. After a brief discussion with
Claimant about the painting - during which the witness learned that Claimant
had intended to send it to his granddaughter as a gift - that item was removed
from the contraband receipt and sent for mailing. Correction Officer Hormozy
indicated that no other items were removed and that had they been, then they
would have been required to be listed on the receipt. He stated that Claimant
never stated to him that the books should be excepted, or otherwise claimed that
the books shouldn't be destroyed.
On cross-examination, Correction Officer Hormozy agreed that the Claimant had
later complained about the search to the officer's supervisor, and that the
witness had answered the complaint and that it had been resolved. In a
memorandum from the investigating officer to the Claimant dated August 13, 1999,
Lieutenant Nagy indicates that there was no staff misconduct. [Exhibit 4].
Correction Officer Hormozy also denied telling Claimant that Deputy Schneider
wanted everything destroyed, and denied otherwise coercing Claimant into signing
the authorization for the disposal of the property. He also reiterated that it
was he - not the art teacher - who, after his conversation with the Claimant,
agreed that the painting could be mailed out, but did not recall if the art
teacher came to the cell. Additionally, Correction Officer Hormozy confirmed
that during the search almost all the inmates on the 30 cell company were out of
their cells, and the area supervisor was circulating. He agreed that generally,
the inmate whose cell is being searched is directed to stand in one spot while
the search is conducted, but denied that this procedure prevented Claimant from
being offered the box of books to review.
This claim is essentially 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].
After carefully considering the evidence presented, including the testimony of
Claimant and Correction Officer Hormozy, and observing their demeanor as they
did so, the Court finds the version of the events presented by Correction
Officer Hormozy the more internally consistent and credible one. Additionally,
the Court is satisfied that Claimant exhausted his administrative remedies.
Court of Claims Act §10(9); 7 NYCRR Part 1700.
In this case, while it appears that the Claimant has shown
that some property - specifically 28 books - was surrendered
to State custody and control, Claimant has failed to establish a bailment claim
for several reasons. He has not established that the disposition of the books
was not one he authorized. He has not established ownership or delivery of any
of the other personal property claimed missing, and he has not established the
value of all of the items claimed including the books and other personalty.
Accordingly, Claim Number 101702 is dismissed in its
Let Judgment be entered accordingly.