New York State Court of Claims

New York State Court of Claims

SANTOS v. THE STATE OF NEW YORK, #2005-030-013, Claim No. 108300


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:
June 1, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Jose Santos, the Claimant herein, alleges in Claim Number 108300 that Defendant's agents negligently lost his personal 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 fourth affirmative defense asserting 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 priority 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. The Defendant indicated that the Claim was received by the Attorney General's Office on September 18, 2003.
Claimant produced a certified mail receipt showing that some item of mail was received by the Office of the Attorney General on June 30, 2003. [Exhibit 1]. Notably, the Claim itself is dated September 12, 2003, and was filed in the Office of the Chief Clerk of the Court of Claims on September 18, 2003. Moreover, Claimant indicates in his Claim that a Notice of Intention to File a claim was served on the Office of the Attorney General on June 30, 2003. [Claim Number 108300, ¶28]. Further review of the submissions Claimant included in Exhibit 1 reveals that a disbursement request form by Claimant dated June 25, 2003 asks for certified mail postage, contains notations breaking down the postage payment including an indication that a return receipt be provided, and describes the item to be mailed to the Office of the Attorney General as a "Notice of Intention to file a Claim." Another disbursement form dated September 13, 2003 does not ask for certified mail postage, and describes the item to be mailed to the Clerk of the Court of Claims and to the Attorney General's Office as a "Motion." [
ibid.]. Other disbursement forms refer to copying costs for documents, and a mailing to the Clerk's Office and to the Office of the Attorney General on or about November 3, 2003 that is likely to pertain to a prior motion on this claim that was first submitted at about that time.
Accordingly, while Claimant did apparently serve a Notice of Intention to file a Claim on the Attorney General by certified mail, return receipt requested, he did not serve the Claim itself either personally, or by certified mail, return receipt requested.

The filing and service requirements contained in §§10 and 11 of the Court of Claims Act 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 fails 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). Regulations require that proof of service be filed with the Chief Clerk within ten (10) days of service on the Defendant. 22 NYCRR § 206.5(a).
Here, the State's Verified Answer pleaded this defense with particularity, preserving the issue for review, and Claimant has not established service as required. Accordingly, for these reasons alone the Claim should be dismissed.

More substantively, Claimant testified[1]
concerning his bailment claim. He said that on or about April 16, 2003 his personal property was packed up in eight (8) bags for his transfer from Sing Sing to Fishkill Correctional Facility. All were sealed by State personnel. When he was ready for the draft the next day, personnel determined that four (4) bags could not be transported in the draft vehicle, but could be mailed at his expense. The cost he paid for the mailing was $30.17. About three weeks after his transfer, he went to the package room at Fishkill to pick up his property, only to find that his property was no longer in sealed bags, but in a sealed box. The clothing in the box was tossed all around in broken bags, and not gathered together as it had been in the sealed bags. When he asked the officer what happened, the officer could not say. Claimant noticed right away that his Timberland boots were missing, and said to the officer that he was going to use the I-64 that had been completed at Sing Sing to compare with what property was being presented to him at Fishkill. Claimant was told that another officer would assist him with the inventory, since the officer he was speaking with was "busy." When they completed the inventory together, Claimant noted that in addition to the Timberland boots, he was missing a Radio Shack radio, headphones, an adapter, 6 shirts, 2 sweatshirts, 3 poloshirts, 2 sweatpants, and 2 sweatshirts with hoods, with a total value of $431.38. These were the items Claimant included in the facility claim he filed, and they also appear to be listed by correction personnel on the I-64 inventory form completed at Sing Sing. [Exhibit 2]. The I-64, unfortunately, is largely illegible and contains the typical lack of description of the items inventoried, hampering the Court's ability to evaluate what was actually taken into the custody and control of Defendant's agents. [ibid.]. Notably, the Claimant's signature acknowledging receipt of the items listed at Fishkill is on the I-64 form. [ibid.].
Claimant furnished a local permit for Sing Sing showing that as of March 4, 1996 - the date of the permit - he was in authorized possession of a Radio Shack cassette player, headphones and an adaptor. [Exhibit 2]. A gift receipt with the Radio Shack logo also describes those items, and indicates they were shipped to him on February 28, 1996, but does not contain a value. [
ibid.]. He also furnished package room receipts covering the period from December 17, 2002 through April 15, 2003, showing that sweatpants, sweatshirts, and shirts had been duly received, but no boots, and submitted a cash register receipt from Timberland, presumably for the boots, showing a purchase in August 1998 in the amount of $53.61. [ibid.].
The facility claim was denied. [
ibid.]. The reviewing officer indicates in the section of the form showing reasons for disapproval of the claim that "Claimant signed for the four late bags with only one complaint that a pair of boots were missing. Package Room records indicate that not all claimed property, including boots, were (sic) received legally." [ibid.]. On appeal, the Superintendent indicated that he concurred with the original decision denying the claim. [ibid.].
On cross-examination, the Claimant confirmed that his facility claim was denied, but said also that "they always deny inmate claims."

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 (NY Dist. Ct. 1973). Receipts are the best evidence of fair market value, although uncontradicted sworn testimony may also be acceptable.
In this case, Claimant has established that he had surrendered at least some items of personal property 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.
See Court of Claims Act §10(9). Nonetheless, even if the Court had jurisdiction, while it appears that the Claimant has shown prima facie that some property was surrendered to State custody and control, and might have been lost through negligence, Claimant failed to establish value by a preponderance of the credible evidence. Additionally, there is some nominal evidence that some of the property was not properly received pursuant to facility rules. Specifically, the boots are not recorded as having gone through the package room.
Accordingly, Defendant's motion to dismiss upon which decision was reserved at the time of trial is hereby granted, and Claim number 108300 is hereby dismissed in its entirety.

Let judgment be entered accordingly.

June 1, 2005
White Plains, New York

Judge of the Court of Claims

[1] Claimant requested the services of a Spanish interpreter, and testified for the most part using such services. The interpreter translated whatever was said by the Court, or the Attorney General as well.