Jesse Smith, the Claimant herein, alleges in Claim Number 107768, that
Defendant's agents negligently or intentionally lost his property while he was
in the custody of the New York State Department of Correctional Services
(hereafter DOCS), initially at Sing Sing Correctional Facility (hereafter Sing
Sing), and thereafter at other State facilities.
Claimant testified that on August 6, 1999 his property was packed up at Sing
Sing outside of his presence for his transfer to "Marcy Psychiatric
, but it never arrived. Indeed, Claimant said that "nobody knew where the
property went." It was not clear from his testimony what facility he was in when
he learned that he was missing property; however in the claim it appears that he
was moved back and forth between the hospital, Sing Sing, Fishkill Correctional
Facility (hereafter Fishkill) and Attica Correctional Facility (hereafter
Attica). A facility claim was filed at Sing Sing.
Using the information contained in paragraph five of his Claim as a reference,
Claimant testified that the items that were missing were, a "net bag containing
three full and complete photo albums of family pictures each holding
approximately 60 pictures, . . . four large 8 by 10 photos and two 5 by 7
photos, 17 cassette tapes, two pairs of shoes - Lugo Brown and Air Walker - one
off-white personal shirt, a religious medal and chain, a Timex watch, a
religious wedding band, one Panasonic trimmer, and one pair of personal
eyeglasses prescribed by Fishkill." He stated that the photograph albums came
through the package room, and 168 photos were missing.
Claimant testified that for over one (1) year he was moved between the hospital
and correctional facilities. He asserted in his facility claim that the loss
occurred on October 14, 1999 - presumably when he first returned from Marcy
Hospital and was able to ascertain his loss. [Exhibit 1]. The facility claim,
however, does not appear to have been filed until April 2002. [
]. It was denied on May 22, 2002, with the Institution Steward
indicating that the claim was "filed 6 months late." [ibid.
appeal to the Superintendent of that determination was denied on June 4, 2002.
In terms of possession, delivery and value, Claimant relied on various permits
issued allowing his possession of the property and the estimates thereon
concerning value, as well as the package room notations attesting to receipt of
some property in terms of possession. [
]. He submitted an I-64 inventory form related to a transfer from
Sing Sing to Attica, dated October 14, 1999, noting that although he originally
had four (4) bags when he was moved to Marcy, the inventory form indicated only
three (3) bags. [ibid.
Claimant also made reference to a letter received by his wife from Sing Sing
concerning correspondence she initiated with the facility
[Exhibit 1]. The letter from the Superintendent and the Deputy
Superintendent is dated February 5, 2002, and states: "I am in receipt of your
correspondence dated 12/5/01 regarding property that you believe was ‘left
behind' by your husband in 1998 here at Sing Sing Correctional Facility.
Regrettably, we have been unable to locate any property at this late date. Our
records do indicate that 4 bags of his property were transferred with him on
8/6/99. A follow up inquiry at both Downstate Correctional Facility and Auburn
Depot also failed to produce any additional property."
No other evidence was submitted and no other witnesses testified.
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 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
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 testimony concerning replacement
value may also be acceptable. Personally meaningful items, such as photographs,
have no fair market value. [See Benton v State of New York
No. 94337, Collins, J., July 8, 1999].
Court of Claims Act §10(9) provides: "A claim of any inmate in the custody
of the department of correctional services for recovery of damages for injury to
or loss of personal property may not be filed unless and until the inmate has
exhausted the personal property claims administrative remedy, established for
inmates by the department. Such claim must be filed and served within one
hundred twenty days after the date on which the inmate has exhausted such
remedy." The administrative remedy referred to is codified at
7 NYCRR Part 1700, and is generally deemed exhausted once the initial review and
appeal determination is made. See Tafari v State of New York
Claim No. 106576, Motion No. M-65889, UID #2002-019-591 (Lebous, J., December 9,
The Court is satisfied that Claimant pursued a facility claim for his alleged
property loss, that was denied on June 2, 2002. Claimant appears to have served
a notice of intention to file a claim upon the Office of the Attorney General on
or about June 19, 2002, or within 120 days of exhausting his administrative
remedy, allowing him an additional time period - at least under the current
case law - within which to file this Claim. Court of Claims Act §10(3).
Unfortunately, and despite the seeming sincerity of his testimony, Claimant did
not establish by a preponderance of the credible evidence all the elements
necessary in a bailment claim. He did not establish exactly what items of
property were last in his possession and were delivered into State custody and
control. The only I-64 inventory form furnished appears to document property
sent from Sing Sing to Attica, and it is unclear how the items listed on it
relate to the property he asserts is missing in this Claim. [
Exhibit 1]. By way of example, although there is a local permit from
Sing Sing indicating his possession of a "white medal
band" valued at $40.00 on December 20, 1995, it is not shown on the I-64 form
that may - or may not - relate to the property loss claimed herein.
In this case, Claimant has simply not been able to establish
even the threshold
that some property was surrendered to State
custody and control, and thereafter misplaced, or damaged. Accordingly, Claim
Number 107768 must be dismissed in its entirety.
Let Judgment be entered accordingly.