New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2005-030-014, Claim No. 107768


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)

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 Center"[1]
, 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. [
ibid.]. It was denied on May 22, 2002, with the Institution Steward indicating that the claim was "filed 6 months late." [ibid.]. Claimant's appeal to the Superintendent of that determination was denied on June 4, 2002. [ibid.].
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. [
ibid.]. 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." [ibid.].
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 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 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, Claim 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, 2002).
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. [
See Exhibit 1]. By way of example, although there is a local permit from Sing Sing indicating his possession of a "white medal
(sic) wedding 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. [ibid.].
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.

June 1, 2005
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.