Leo Rodriguez, the Claimant herein alleges in Claim Number 104954 that
Defendant's agents negligently or intentionally lost or destroyed his property
while he was incarcerated at Downstate Correctional Facility. Trial of the
matter was held at Sing Sing Correctional Facility on February 27, 2004.
According to his Claim, Claimant purchased a Timex Iron Man wristwatch via mail
order in December, 2001. He received it on February 13, 2001, and was issued a
local permit for its possession. [Exhibit A].
Although his claim indicates the watch was lost or stolen when he was
transferred to Clinton Correctional Facility (hereafter Clinton) in May, 2001,
he testified somewhat differently through a Spanish interpreter.
Claimant stated that while he was attending church at Clinton one day - he
could not recall the date - he was told he had a visitor. When he went to
receive his visit, he surrendered his watch to the officer because he wasn't
allowed to bring it on the visit. After the visit ended he went back to the
officer - it was not clear if it was the same one - and asked for his watch
back. He was told the watch was with the housing officer. When he returned to
his assigned housing and inquired, the officer there said he had placed the
watch in the desk drawer and couldn't find it. The watch was never found.
Claimant testified that the watch cost $43.00 plus shipping. A computer
printout, Claimant indicated, which was provided by Music by Mail, the company
from whom he bought the watch, shows purchase of a Timex watch on February 12,
1999 and also indicates he was "short $2.40" at the time. [Exhibits 1 and 2].
The local permit [Exhibit A], however, is dated February 13, 2001, and Claimant
testified that the permit was issued the day he got the watch. Claimant also
indicated in his written Claim that he did not enter the custody of the New York
State Department of Correctional Services (hereafter DOCS) until the year 2000,
a fact confirmed by a copy of a commitment Order appended to his Claim. [Exhibit
D to Claim No. 104954].
From the Claim it appears Claimant pursued his personal property claims remedy
Exhibit B to Claim No. 104954]. In a memorandum dated July 27, 2001,
directed to Claimant by the Head Account Clerk, he was offered $3.00 in
settlement because "[t]he receipt provided indicates your watch was purchased in
February 1999, thereby exceeding the Life Expectancy of two years." [Id]
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 item 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].
In this case, Claimant has established that he surrendered his personal
property to DOCS custody and control, and that it was lost while in their
custody. The Court is satisfied that Claimant exhausted his administrative
Court of Claims Act §10(9); 7 NYCRR Part 1700. The Claimant
presented as a credible witness, whose testimony was uncontradicted. Claimant's
testimony concerning the value of the watch, as well as the receipt presented,
establish the total loss as $43.00. The Court finds the Claimant's explanation
of when the watch was purchased credible, and since the watch was not more than
one (1) year old at the time of the loss, depreciation is not applied to arrive
at fair market value. See Schaffner v Pierce
Accordingly, Claimant is hereby awarded damages in the amount of $43.00 plus
statutory interest [§16 State Finance Law; § 5004 Civil Practice Law
and Rules], which the Court finds presumptively reasonable, from the date of
accrual of May 7, 2001 to the date of this Decision, and thereafter to the date
of the entry of judgment pursuant to §§ 5001 and 5002 Civil Practice
Law and Rules.
It is ordered that to the extent Claimant has paid a filing fee, it may be
recovered pursuant to Court of Claims Act § 11-a(2).
Let Judgment be entered accordingly.