David Larkins, the Claimant herein, alleges in Claim Number 106697 that
Defendant's agents negligently lost and/or damaged his property while he was
incarcerated at Green Haven Correctional Facility (hereafter Green Haven),
and/or other correctional facilities. Trial of the matter was held at Sing Sing
Correctional Facility on February 25, 2005.
Claimant testified that on October 16, 2001 he was asked to come out of his
cell at Green Haven, and submit to a
He closed his cell door when he left to go down the hall for the search. After
he was searched, it was determined that he "wasn't in compliance," because he
was wearing "double clothing." He stated that this "was incorrect, because at
the time the rules said that after October 15 you could wear double layers", so
the fact that he was wearing an extra pair of sweat pants did not violate
facility rules. Nonetheless, he said "an altercation took place, and . . .
[he] ended up being taken directly to the box [special housing unit or SHU]."
On or about October 18, 2001, while he was housed at SHU, his property arrived,
in "seven separate bags, so. . . [he] didn't get a chance to determine what was
there, what was missing or what was broken, because the officers who were doing
the inspection of . . . [his] property said ‘just take what's on the gate
and go back to your cell'." Claimant complied with the direction to go back to
It was only in January of 2002, when he "arrived at Lakeview shop, S-Block",
that he was able to view all his property at once - even though it arrived on
three different occasions - but he was able to see that certain things were
damaged. He tried to pursue his administrative remedies, but was told not to do
it at that facility. He then filed a grievance with respect to being foreclosed
from pursuing an institutional claim, but was told that was a non-grieveable
When he arrived at Elmira Correctional Facility on or about March 17, 2002 and
was presented with his property on two different occasions, he was finally able
to determine "what was broken, what was missing, and put in the necessary state
claims, presenting. . . [his] situation to the administration at that time." He
testified that "they offered . . . [him] what was a slap in the face; payment
for the tuna fish that was missing, and not for the rest of the material."
Thereafter, Claimant submitted this claim to the Court of Claims, asking for
$171.75 in damages.
Claimant indicated that the damage figure primarily included damage done to the
typewriter. When it was new in 1997, Claimant indicated that it cost about
$140.00. His radio, which he said was purchased new at Green Haven, cost $17.00
and was "about three months old" at the time of the loss. His fan was broken
when he arrived at Elmira. He said he was missing some skin care items and some
stamps. The institutional claim he filed was dismissed.
Claimant identified two I-64 inventory forms dated, respectively, October 17,
2001 and January 14, 2002. [Exhibit 1]. The form filled out on October 17, 2001
was completed outside of his presence at Green Haven because he was "in the box"
at the time.
Claimant also presented an I-64 form completed at Lakeview
Correctional Facility prior to his departure on April 15, 2002 [ Exhibit 2]; as
well as an I-64 completed at Elmira when he arrived. [Exhibit 3]. Additionally,
Claimant submitted monthly statements to show the amount of money taken from his
account to pay for the transfer of all this property, [Exhibit 4], as well as
receipts from the commissary to show the purchase of Irish Spring soap, cocoa
butter lotion, stamps, and the amount paid for the typewriter and the radio, as
well as a copy of his institutional claim, the settlement offer of $2.96, and
the denial of his appeal. [Exhibit 5].
On cross-examination Claimant confirmed that he was transferred from Green
Haven to Lakeview, and then to Elmira, and that the State transported part of
his property during the course of those transfers, and other items he was
required to mail. He indicated that he understood that the State limited the
amount of property it transports for an inmate to four (4) bags. Any property
that did not fit in four (4) bags would be mailed at the inmate's expense. He
disagreed that his property was in seven (7) bags, but stated that there had
been legal papers taken out of his bags and separated out, and that all of this
property would have taken only four (4) bags, plus a typewriter bag, had they
packed it correctly. In seeming contradiction, he then said that there were
seven (7) bags taken to SHU within Green Haven - not sent on to Lakeview - and
the I-64 form dated October 17, 2001 represents the items packed up out of his
presence when he was moved to SHU, not necessarily the items he took to
Lakeview. [Exhibit 1]. He confirmed that he did not submit an I-64 form showing
what property arrived at Lakeview, but rather Exhibit 2 shows the five (5) bags
he left with from Lakeview in April 2002 on his way to Elmira. He said when he
went from Green Haven to Lakeview, the typewriter came with him, and the fifth
bag was mailed. He did not have the typewriter in his cell, because he was
again in SHU at Lakeview where such items are not allowed. Thereafter, when he
went from Lakeview to Elmira, 6 bags were involved. The sixth bag - or box he
later explained - had a bucket and a fan and some plastic bowls that
disappeared. These were not on the I-64, "because . . . [he] wasn't given one."
From viewing the forms, he would not agree that it could not be seen what was
mailed or what was sent.
He noted that property was first missing in January 2002, but could not
ascertain what was missing until April 2002.
This claim was served on September 23, 2002 by regular mail, and was filed in
the Court of Claims on September 26, 2002. Claimant indicated that he had asked
the mailroom to send the claim by certified mail, and had sent the proper funds
for such service, but the mailroom did not forward his mail by certified mail,
return receipt requested. He acknowledged that he had not initially served a
copy of the claim by certified mail, return receipt requested, but said that he
did serve a copy by certified mail, return receipt requested a few days later.
No other witnesses testified, and no other evidence was submitted.
At the close of the case, the Defendant moved to dismiss on both jurisdictional
and substantive grounds. On the jurisdictional issue, the Defendant stated that
Claimant had not established that he had served the Claim on the Defendant as
required, by certified mail, return receipt requested, thus the Court did not
have jurisdiction over the claim. Defendant also moved to dismiss based upon
Claimant's alleged failure to establish that the property claimed as lost or
damaged was within the exclusive custody of the State of New York as opposed to
the United States Postal Service.
The Claimant stated that he had served a Notice of Intention upon the Attorney
General, but did not indicate when and in what manner such Notice of Intention
was served, nor did the Assistant Attorney General acknowledge that a Notice of
Intention had been received by Defendant. Additionally, the Court reviewed the
Clerk's file to determine whether an affidavit of service or some other proof
that a Notice of Intention had been served upon the Office of the Attorney
General, had been filed, and no such documents were filed therein.
In its Answer the Defendant acknowledges that a second copy of the claim was
served upon it by certified mail, return receipt requested, on September 26,
Claimant's administrative remedies appear to have been exhausted on August 6,
2002, when the appeal of his claim was denied. [
, Exhibit 5]. Accordingly, the Claim was timely served [Court of
Claims Act §10(9)], and appears to have been served by the proper means,
ultimately, thus Defendant's motion to dismiss on jurisdictional grounds is
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.
The Court is satisfied that Claimant exhausted his administrative remedies.
Court of Claims Act §10(9); 7 NYCRR Part 1700.
The facility claim apparently filed at Elmira lists 13 items as lost or
damaged, including a Panasonic Radio bought new for $16.75, and a seven-year-old
typewriter bought new for $149.97. [Exhibit 5]. Receipts he submitted from the
commissary at Green Haven, dated, respectively, October 7, 1999, January 12,
2000, January 26, 2000; April 5, 2000; October 13, 2000; March 14, 2001; April
11, 2001;June 6, 2001; July 5, 2001; September 12, 2001; October 29, 2001; and
December 6, 2001 list numerous food items, toiletry products, and batteries, and
Claimant appears to have drawn a line under those items he includes as part of
Additionally, two disbursement-request forms show the purchase of
a Panasonic cassette player and radio on August 16, 2001 for $39.00; and a
typewriter, headphones and adaptor for $169.93 on December 5, 1995. [Ibid].
A comparison of the receipts with the items claimed on the facility form,
the claim filed in this court, and the limited I-64 forms presented, shows
purchases at various times throughout an almost three (3)-year period of
primarily fungible items that may or may not have been properly inventoried out
of Claimant's presence in October 2001, when he alleges the first loss or damage
occurred. Additionally, the values do not correlate across the board, in that
the facility claim lists one value, receipts say another, and then the claim
filed herein - as well as the testimony heard herein - say something different.
Claimant's testimony was unclear, and in some places internally inconsistent.
Unfortunately, and although the Court would ordinarily say that recordkeeping
failures such as incomplete I-64 forms should not be chargeable to a Claimant,
the Claimant simply did not establish by a preponderance of the credible
evidence that specific items of personal property were delivered to the New York
State Department of Correctional Services' (hereafter DOCS) custody and control,
and that the property was lost or damaged while in their custody. The lack of
proof is twofold in that it is unclear what items were actually delivered into
DOCS custody, and then what items of those delivered into DOCS custody were
mailed through the United States Postal Service, and what items were transported
Accordingly, Defendant's motion to dismiss, upon which the Court reserved
decision at trial, is hereby granted, and Claim Number 106697 is in all respects
Let Judgment be entered accordingly.