, the Claimant herein, alleges in Claim number 107862 that Defendant's agents
negligently lost his property while he was incarcerated at Sing Sing
Correctional Facility (hereafter Sing Sing). Trial of the matter was held at
Sing Sing on April 29, 2005.
As an initial matter, Defendant made a motion to dismiss the claim based upon
its ninth affirmative defense, a lack of jurisdiction because of the failure to
properly serve the claim, pursuant to Court of Claims Act §11.
Specifically, Defendant indicated that although Claimant used certified mail to
serve the claim, it was not served via certified mail, return receipt requested,
nor was it served personally upon an Assistant Attorney General. Counsel for
the Defendant indicated that the Claim was received by the Attorney General's
Office on June 11, 2003, contained a certified mail stamp but did not include a
Although Claimant could not produce proof that the claim had been served
certified mail, return receipt requested, "at the
he did testify that he had served
multiple copies of the claim, and that he had paid for the proper mail service.
Moreover, the affidavit of service filed with the claim attests to service by
certified mail, return receipt requested.
The filing and service requirements contained in Court of Claims Act
§§10 and 11
are jurisdictional in nature and must be strictly construed. Finnerty v New
York State Thruway Auth.
, 75 NY2d 721, 722-723 (1989). Service upon the
Attorney General by ordinary mail is insufficient to acquire jurisdiction over
the State, as is mail service by any means other than certified mail, return
receipt requested, unless the State has failed to properly plead jurisdictional
defenses or raise them by motion. Court of Claims Act §11(c); Edens v
State of New York
, 259 AD2d 729 (2d Dept 1999); Philippe v State of New
, 248 AD2d 827 (3d Dept 1998). Additionally, the Claimant has the
burden of establishing proper service. Boudreau v Ivanov
, 154 AD2d 638,
639 (2d Dept 1989).
Here, although the State's Verified Answer includes this defense, Claimant has
satisfied the Court that the Claim was properly served, and the Defendant did
not refute by appropriate evidence the Claimant's showing that the claim was
properly served. Accordingly, Defendant's motion to dismiss, upon which decision
was reserved at the time of trial, is hereby denied.
Claimant testified concerning his bailment claim. He indicated that he ordered
property through a mail order catalogue, using the disbursement request forms
provided by the correctional facility, and the property - specifically a watch -
duly arrived. [Exhibit 1]. Claimant had to send it back for batteries however,
but when Claimant went to retrieve it from the package room, the officer told
him it was "stolen," on or about March 6, 2003. Claimant filed an institutional
claim, but was told that the papers for the claim were lost. Notably, a review
of the papers submitted as Exhibit 1 shows a confirmation from the company from
whom he ordered the watch that it had been returned, as well as an indication
that it was purchased for $44.00. Claimant also appears to have had a local
permit issued by the facility authorizing his possession of the watch, and
attesting to its maximum value of $50.00.
Claimant also indicated that a ring with a "street value" of $200.00 was lost.
He stated that it was placed "in the sergeant's safe, then they told . . .
[Claimant] that they put it with . . . [his] personal property, now the property
cannot be found."
Claimant stated that packages would keep coming in, and would be lost. A
cassette recorder, worth $20.00, was one item lost. He indicated that he no
longer had paperwork for these, or receipts.
Claimant briefly alluded to conduct by correction personnel that he considered
"defamation of character", and while the Court appreciated Claimant's visible
distress concerning what he saw as inappropriate commentary by personnel,
Claimant could not provide specific language nor did he recite facts that would
allow the Court to evaluate whether any cause of action was stated.
No other witnesses testified, 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). 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, but uncontradicted testimony concerning
replacement value may also be acceptable.
In this case, Claimant has established that he had 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. The Court is satisfied that Claimant exhausted his administrative
remedies, at least with respect to the watch, and finds that his uncontradicted
testimony concerning its value, as well as the value assessment given in the
local permit by correctional personnel, confirms the value as well. There is no
proof of delivery or other elements creating a bailment with respect to the
ring, the cassette recorder or the "other packages" Claimant briefly referred to
in his testimony.
The Claimant presented as a credible witness, whose testimony was essentially
uncontradicted. Claimant's testimony concerning the value of the property lost,
together with applicable depreciation, establish the total loss for the watch as
$44.00. It was less than one (1) year old at the time of the loss, thus
depreciation is not applied to arrive at fair market value.
See Schaffner v Pierce
Accordingly, Claimant is hereby awarded damages in the amount of $44.00 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 6, 2003 to the date of this Decision, and thereafter to the
date of the entry of judgment pursuant to Civil Practice Law and Rules
§§ 5001 and 5002 .
It is ordered that to the extent that Claimant has paid a filing fee, it may be
recovered pursuant to Court of Claims Act § 11-a(2).
Let Judgment be entered accordingly.