New York State Court of Claims

New York State Court of Claims

BOYD v. THE STATE OF NEW YORK, #2004-030-033, Claim No. 105924


Synopsis



Case Information

UID:
2004-030-033
Claimant(s):
MARKEITH BOYD
Claimant short name:
BOYD
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105924
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
MARKEITH BOYD, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
October 4, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Markeith Boyd, the Claimant herein, alleges in Claim number 105924 that defendant's agents negligently lost his property while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven). Trial of the matter was held at Sing Sing Correctional Facility on August 27, 2004.

Claimant testified that on or about June 15, 2001 he "went to emergency sick call due to an eye injury."[1]
After evaluation in the facility, he was taken to "an outside hospital," and all his property was packed up. When he returned from the hospital "that evening", he was placed in "involuntary confinement" in the facility infirmary, where he remained for approximately one (1) month.
On July 17, 2001 he was released from the infirmary, and placed in involuntary protective custody "due to the injury of the assault." When he received a bag of his property he realized "there was a bunch of property missing," and told the officer giving him the bag that such was the case. He alleges he was advised to sign the I-64 inventory form nonetheless, and did so while still maintaining property was missing.

Claimant stated that policies and procedures contained in Directive 4934 mandate that "personal property is supposed to be stored and maintained, and secured by those officials." Furthermore, he said that whenever "a person leaves his cell for an outside hospital trip for example they must padlock his cell with a chain around it to prevent someone from getting inside the cell and taking the property." Claimant said that officials failed to padlock his cell as required by the Directive. He indicated that when he was in the IPC area, he learned that his property had been kept in the "feed-up area," where inmates would have had access to it.

Using his facility claim as a reference, [
See Exhibit A], Claimant testified that the following items - all either brand new or two months old - were missing: Books: Scholarships, Grants ($21.56); Scholarships, Grants for Adults ($15.96); Paying for College ($11.96); Principles of Macroeconomics ($45.00); Principles of Macroeconomics Resource manual ($45.00); Macroeconomics annotation edition ($43.00); Macroeconomics private Markets ($35.00); Microeconomics Private markets Instructors Manual ($35.00); Principles of Micro- economics ($39.00); Principles of Microeconomics Test Item file ($45.00); Principles of Micro- economics Instructors Resource Manual ($50.00); Economics - 5th edition ($40.00); and Economics Today 2001-2002 ($40.00). Other items of greater age included 2000 Edition Lawyers Diary ($50.00 when new; 1 year); Prisoners' Self Help Manual ($32.95 when new; 3 years); Jailhouse Lawyers Manual ($30.00 when new; 3 years); Sony WM-Ex670 Walkman ($100.00 when new; 15 months); GE Super Radio III ($45.00 when new; 15 months); Reebok ACG Hiking Boots ($50.00 when new; 4 months); Champion Sneakers ($30.00 when new; 6 months); Lugz Shoes ($48.00 when new; 4 months); Phat Farm shoes ($40.00 when new; 10 months); and "assorted commissary" ($50.00 when new; 2 months). [See Id]. The loss claimed is in the total amount of $849.47.
He testified that he incurred additional costs in pursuing the claim because of the cost of postage and typewriter ribbons.

Claimant submitted a two page I-64 inventory form completed by correction officers outside of his presence on June 26, 2001. [Exhibit 2]. The form also bears his signature dated July 17, 2001.
[Id]. Although 25 books are checked off, there is no list of what the books are. No notation of a Sony Walkman, or a GE Super Radio, is made on the I-64 form in the spot where permit items should be listed, although Claimant furnished local permits for both items showing that he had been issued permits on June 12, 2000 allowing both items [See Exhibit 3]. An I-64 form from his earlier transfer from Sullivan Correctional Facility to Green Haven on June 12, 2000 shows, he testified, that he had the Sony Walkman and the GE Super Radio in his possession when he arrived at Green Haven. [See Exhibit 4]. To establish that he had received the books in question while at Green Haven, Claimant presented package room receipts showing receipt of four books on June 1, 2001 from the Department of Finance at the University of Texas, seven books on May 26, 2001 from Colby College, and three books from Thomson Learning progress on April 16, 2001. [Exhibit 5]. He stated that his wife had paid for the books "out of my account," and thus he had no receipts; he had no receipts for the Lawyers Diary and Manual because he "had it for awhile." The package room receipts also show receipt of a pair of Lugz shoes on March 23, 2001 listed as valued at $39.99. [Exhibit 5]. He presented a disbursement request form dated July 28, 2000 showing a request for issuance of monies for Phat Farm shoes in the amount of $43.75. [Exhibit 6].
Claimant testified that he made a Freedom of Information Law (FOIL) request to obtain records of log entries, and thus learned that his cell was not padlocked as required. [
See Exhibit 1]. The FOIL response dated August 21, 2001 indicates "Be advised there was no log entry showing when or if your cell was padlocked." [Id].
There was no cross-examination.

After Claimant rested, Defendant offered in evidence without objection what was identified by Claimant as a copy of his facility claim. [Exhibit A]. The copy shows that the section for initial review of the claim is marked as disapproved on August 13, 2001. The portion of the form for an appeal statement by the inmate, and the appeal determination by the Superintendent, is blank.

No other witnesses testified, no motions were made and no other evidence was submitted.

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 Misc2d 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. In its Answer, the Defendant asserted the affirmative defense of failure to exhaust administrative remedies. Presumably in support of that defense, Defendant offered Exhibit A. Placing a document in evidence, however, without any explanatory information concerning it, does not satisfy Defendant's burden of proof on an affirmative defense. The fact that Claimant had no objection to its admission, and, when queried, stated that it was a "complete" copy of his facility claim, merely begs the question. From the context, Claimant was clearly indicating that the items listed as missing were all on the copy of the claim shown to him by the Assistant Attorney General. Without specific inquiry as to the absence of any appeal information on the copy of the facility claim Claimant was shown, nothing else is inferred.
Court of Claims Act §10(9) provides: "A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy." The administrative remedy referred to is codified at
7 NYCRR Part 1700, and is generally deemed exhausted once the initial review and appeal determination is made. See Tafari v State of New York, Claim No. 106576, Motion No. M-65889, UID #2002-019-591 (Lebous, J., December 9, 2002). Notably, while a prospective Claimant applying for permission to serve and file a late bailment claim must allege that he has exhausted his administrative remedies in supporting papers, the bailment claim itself need not affirmatively plead that administrative remedies have been exhausted. See Edwards v State of New York, Claim No. NONE, Motion No. M-63697, UID#2002-013-012 (Patti, J. March 21, 2002);[2] Rivera v State of New York, Claim No. NONE, Motion No. M-64405, UID#2002-031-009 (Minarik, J., March, 26, 2002). As a provision wherein the limitations period for commencement of a suit based on personal property loss is prescribed, it only makes sense that Court of Claims Act §10(9) does not create a requirement - unlike any other statute of limitations stated - that claimant plead exhaustion of administrative remedies in his claim.
The Court is satisfied that Claimant pursued a facility claim for his alleged property loss, that has been denied. It was incumbent upon Defendant to prove its affirmative defense of a failure to exhaust administrative remedies. Accordingly, Claimant is deemed to have exhausted his available administrative remedy, given the Defendant's failure to address its affirmative defense.

Claimant has established that he surrendered certain personal property items to New York State Department of Correctional Services (hereafter DOCS) custody and control, and that some property was lost while in their custody. Indeed, given that it is State officials who completed the initial I-64 form outside of his presence, there was no opportunity for Claimant to correct any incorrect notations, or augment items listed with sufficient detail to actually enable anyone reviewing the list to be able to ascertain what was inventoried. For example, in not very helpful fashion "25 books" are noted as inventoried, without any indication of their titles. [
See Exhibit 2].
The Claimant presented as a credible witness, whose testimony was essentially uncontradicted. Unfortunately, he did not establish his initial possession of some of the property prior to his removal for medical treatment. Thus whether the Sony Walkman or the GE Super Radio was still in his possession when the inventory was made is not supported by the evidence, nor is a finding that he was in possession of the Lawyers Diary, the Prisoners' Self Help Manual, the Jailhouse Lawyers Manual, the Reebok ACG Hiking Boots, or the Champion Sneakers. Claimant did not link, through testimony or other evidence, these items to, for example, the package room receipts referencing newer books, such as the economics texts he indicated he received within months of the loss. There was no testimony concerning the specific commissary items.

Claimant's testimony did, however, establish loss of the economics texts, the Lugz shoes, and the Phat Farm shoes. His testimony concerning the value of the property lost, as well as the receipts presented, establish the total loss as $505.00. The items were less than one (1) year old at the time of the loss, thus depreciation is not applied
See Schaffner v Pierce, supra, at 24.
Accordingly, Claimant is hereby awarded damages in the amount of $505.00 plus appropriate interest from July 17, 2001 to January 17, 2002 and then from April 17, 2002 to the date of this decision and thereafter to the date of the entry of judgment.

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.

October 4, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] All quotations are to trial notes or audiotapes unless otherwise indicated.
[2] See also Judge Patti's initial consideration of Mr. Edwards' motion, Edwards v State of New York, Claim No NONE, Motion No M-63697, UID#2001-013-026 (Patti, J., December 7, 2001).