Lester Kidd, the Claimant herein, alleges in Claim Number 105189 that
Defendant's agents were negligent in conducting an investigation into the loss
of certain items of Claimant's personal property while he was incarcerated at
Fishkill Correctional Facility (hereafter Fishkill). Trial on the issue of
liability was held on October 21, 2004.
Mr. Kidd indicated in his claim that on May 23, 2001 he submitted an inmate
claim form for lost property that was inadequately investigated. Specifically,
he claimed that investigation of his claim concerning photographs of his
children he asserted were "thrown out"
by correctional personnel was negligently performed, making him unable to obtain
"the name of the officer who threw out the photographs" to further pursue his
claim. He said that offering him "$152.00 [in settlement] was just to keep . .
. [the officer's] name under wraps." Mr. Kidd stated that the inmate claim for
the lost photographs was "never satisfied."
The loss of the photographs occurred when his property was packed up for
transfer from his regular cell to a cell in the Special Housing Unit (hereafter
SHU). When the property arrived at SHU, he could see that "it was not sealed or
anything." He did not recall signing any I-64 inventory form, because he
"watched the photographs get thrown in the garbage." Claimant urged that the
failure to properly investigate the claim, and the violation, therefore, of the
"mandatory" language contained in the facility directive relative to personal
property loss claims and their investigation - Directive 2733 [
Exhibit 1] - entitled him to compensation in the amount requested in
the original claim. He said that the investigation report was "blank," and the
original amount he asked for was $5,000.00 for the loss of the photograph album
containing his children's pictures.
At trial, there was some preliminary discussion of the effect of a Notice to
Admit Claimant had served upon the Defendant, and the Defendant's response
thereto. The Assistant Attorney General noted that from her review of the
correspondence, it appeared that the facility had "lost some photographs."
Claimant argued that this concluded the matter.
The inmate claim form and associated documents show that Claimant submitted his
form claiming the loss, and valuing the photographs in the amount of $5,000.00,
based upon the unnamed correction officer's "fault". [Exhibit 2]. Although the
documents emanating from the facility make reference to an "investigation
report", and to an "investigation" by turns, there is no indication that the
form 1422 investigation report was completed, except that it states "see
attached" in the portion where description of lost items are to be listed, as
well as the portion of the form where the "Claim Investigator's
Recommendation/Comments" are to be placed.
. The 1422 form is dated June 8, 2001 and no similarly dated
papers are attached. [Id].
The facility extended a settlement offer on
July 17, 2001 in the amount of $152.00, based upon 75 photos at $2.00 each, and
premised on the other portion of Directive 2733 providing that items of
sentimental value can only be replaced at cost. [Id
On cross-examination, Claimant explained he did not indicate in his original
facility claim that the photographs were deliberately disposed of by a
correction officer because he "didn't want to get killed."
On its surface, 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 also be acceptable. Personally meaningful items, such as
photographs, have no fair market value beyond their cost in a bailment claim.
[See Benton v State of New York
, Claim No. 94337, Collins, J.,
July 8, 1999].
Accordingly, the facility's offer of $152.00 premised on the copying cost of
the photographs was a fair one if the matter is viewed as a bailment claim
That is not however, the gravamen of the claim. Claimant credibly testified
that a correction officer deliberately destroyed his personal photographs, and
the documentation shows that investigation forms that the department's own
regulations require be completed were either not completed or completed in a
cursory fashion. [
Unfortunately, however, the portion of the facility claim form that Claimant
completed did not contain the salient facts concerning the loss of property:
that a correction officer whose name he did not know threw away the photograph
album. Not having the benefit of this information, the documents admitted show
Ms. R. Wendland, Steward, acknowledging receipt of the Claimant's facility claim
on June 5, 2001; a memorandum from the steward dated June 25, 2001 indicating
that Ms. Wendland was in receipt of letters from Claimant asking for a copy of
the investigation report dated June 14, 2001 and June 20, 2001, and indicating
that the claim was being investigated; and the same steward then recommending
approval of the claim on July 17, 2001 within the limits of the monetary
guidelines for items of sentimental value. [Exhibit 2]. An August 3, 2001
memorandum to Claimant from the steward indicates "This is in response to your
letters of July 20, 2001 and July 27, 2001 addressed to the Superintendent.
Attached find a copy of the investigation report pertaining to inmate claim
As noted above, the exhibit Claimant submitted contains an
investigation form 1422 that has identifying information on it, but references
attached documents that are not attached. [Id].
Claimant said that the
attachment - apparently an investigation report - postdated the settlement
offer, but did not offer whatever this attachment was in evidence. He said that
the fact that the investigation report he did not submit postdates the
settlement offer shows that there was no investigation.
While the facility directives anticipate that whatever memorialization of an
investigation is made will be made contemporaneously, there is no dire inference
to be drawn from a report of activities conducted earlier. The record here
simply shows that those who evaluated his claim for lost property determined
that indeed it had been lost on the facility's watch, and an offer of settlement
was made forthwith. Under the Inmate Personal Property Loss regulatory scheme
they offered the best available monetary solution: compensation for cost of the
Had Claimant asserted that the photographs were destroyed, a different
investigation would have been warranted, and the provisions in Directive 2733
concerning the $5,000 payment ceiling for property loss ". . . caused by the
tort of a Department officer or employee while acting as such officer or
employee . . ." might have been triggered. [
Exhibit 1]. These omissions on his part amount to culpable conduct.
Based upon the above, the Court is satisfied that the Claimant's loss is a
result of the intentional conduct of defendant's employee done in the scope of
his employment, and the State is therefore liable under the principles of
. Claimant, too, is also responsible in part for his
loss, as raised in Defendant's Third Affirmative Defense.
Accordingly, the Court hereby apportions liability, with the State bearing 60%
of the responsibility, and the Claimant bearing 40%. Trial on the issue of
damages shall be scheduled as soon as is practicable.
Let interlocutory judgment be entered accordingly.