New York State Court of Claims

New York State Court of Claims

DRELICH v. THE STATE OF NEW YORK, #2004-030-025, Claim No. 104674


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
August 18, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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.
See 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 to Claim".
Claimant testified that over an extended period of time some issues of magazines containing "adult material"[1]
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 missing:

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 received it.
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. [
See 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 [
See Exhibit 10][2] - 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 York, 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 case 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 Pierce, 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.
See 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 magazine.
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.

August 18, 2004
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.
[2] The facility claim indicates that the magazine was in the custody of State employees at some point, although inconsistent findings are recorded by the reviewing officer. The form indicates that the magazine was "sent to" the inmate on March 5, 2001, while simultaneously noting that "[t]he evidence does not indicate that the claimant owned or possessed the article(s) in question."