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." [
]. 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
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
More substantively, Claimant testified
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.
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. [
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.
The facility claim was denied. [
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
) 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
, 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
., 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 . . .
)" Board of Educ. of Ellenville Cent. School v Herb's
Dodge Sales & Serv.
, 79 AD2d 1049, 1050 (3d Dept
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 (NY Dist. Ct. 1973). Receipts are the best evidence
of fair market value, although uncontradicted sworn testimony may also be
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
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.