Philip Drelich, the Claimant herein, alleges in Claim number 104674 that
Defendant's agents negligently and/or intentionally lost his personal property
while he was incarcerated at Green Haven Correctional Facility. Trial of the
matter was held at Sing Sing Correctional Facility on July 29, 2004.
As an initial matter Claimant asked the Court to consider as part of the Claim
before the Court additional items listed in a "Supplement to Claim" he filed
with the Clerk of the Court on July 8, 2002. The initial claim had been filed
on August 2, 2001. The time within which to amend or supplement the pleading as
of right has long ago expired.
Civil Practice Law and Rules §3025(a). The Court has reviewed
the file and does not find that Claimant ever made an application to amend or
supplement his Claim pursuant to Civil Practice Law and Rules §3025(b).
Accordingly, the Court denies Claimant's application to consider his "Supplement
Claimant testified that over an extended period of time some issues of
magazines containing "adult material"
for which he had paid subscriptions were not delivered to him by Defendant's
agents. He stated that there were two ways that he discovered that he had not
received a given magazine. In some cases, he would receive a magazine for one
month, receive a magazine perhaps two months later, then realize he had not
received the intervening month. In other cases, he would receive notice from
the facility's media review committee that a magazine had been received and was
being reviewed. Sometimes he would receive the magazine from the media review
committee; other times he would never get the magazine.
Pursuant to facility Directive 4572, the Media Review Committee reviews
materials entering the facility to determine whether they incite violence or
contain unacceptable child pornography or depiction of any acts that are
obscene, among other things. [Exhibit 15]. There are procedural guidelines for
how the committee should approach its task, including notice to the inmate that
the item is under review, and further notice that the item has been redacted or
withheld entirely, and additional options for the inmate concerning
dissemination of the material, including forwarding the material elsewhere.
The Claim - filed on August 2, 2001 - lists the following magazines as
Club - (December 2000; January 2001; August 2001)
Club Confidential - (December 2000; March 2001)
Club International - (March 2001; July 2001)
Gallery - (January 2001; February 2001)
Fox - (March 2001; April 2001; July 2001)
Cheri - (May 2001)
Hometown Girls - (July 2001)
Live Young Girls - (July 2001)
Claimant filed facility claims with respect to all these publications. All
were denied. With respect to one facility claim, listing the April 2001 issue
of Fox magazine as missing, he was offered a $5.00 settlement on his appeal.
[Exhibit 9]. With respect to that magazine, he had received a notice in
February 2001 from the Media Review Committee
that it was under review. [Exhibit 8]. On March 1, 2001 he wrote to the
committee about the status and was advised that it had been redacted and
forwarded to him on February 16, 2001. [Id]
. He claims he had not
After reviewing a document listing the magazines reviewed by the media review
committee, Claimant conceded that the March and April 2001 issues of Fox
magazine had been denied by the media review committee and he "withdrew" them
from the present claim. [
Exhibit A]. The August 2001 issue of Club magazine was also reviewed
by the media review committee [Exhibit 4] and, according to Claimant's
testimony, not received.
With respect to some of the magazines, Claimant established that he had paid
for a three (3) year subscription to Club magazine, starting in December 2000;
and had paid for subscriptions to Club International and Club Confidential
magazines both commencing in June 2000 and ending with the May 2003 issues.
[Exhibit 6 and 7]. Similarly, Claimant had disbursement forms for subscriptions
to Cheri magazine dated January 25, 2001; and to Gallery magazine dated March
28, 2000. [Exhibit 2]. He did not, however, establish that any of these
magazines were delivered to the facility - except for the May 2001 issue of
Cheri magazine [
- nor did he establish
that he had paid for the other magazines listed.
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 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 suffice.
In this case, Claimant has established that certain magazines were in the
custody and control of the New York State Department of Correctional Services
(hereafter DOCS), and that some property was lost while in their custody. The
Court is satisfied that Claimant exhausted his administrative remedies.
Court of Claims Act §10(9); 7 NYCRR Part 1700. The Claimant's
testimony was essentially uncontradicted. From the evidence presented Claimant's
total loss is in the amount of $20.00, representing the loss of the May, 2001
issue of Cheri magazine, and the August, 2001 issue of Club
Accordingly, Claimant is hereby awarded damages in the amount of $20.00 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 March 1, 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
recoverable pursuant to Court of Claims Act § 11-a(2).
Let Judgment be entered accordingly.