New York State Court of Claims

New York State Court of Claims

OSVALDO v. THE STATE OF NEW YORK, #2005-030-012, Claim No. 107862


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:
May 18, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Solis Osvaldo
, 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 return receipt.[1]
Although Claimant could not produce proof that the claim had been served certified mail, return receipt requested, "at the time"[2] 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 York, 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 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, 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, supra, at 24.
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.

May 18, 2005
White Plains, New York

Judge of the Court of Claims

[1] Defendant's Counsel indicated that she had the envelope the Claim was delivered in, but it was not submitted in evidence.
[2]All quotations are to trial notes or audiotapes unless otherwise indicated.