Jose Zorrilla alleges in Claim Number 107131 that Defendant's agents illegally
seized his property on November 5, 2002 during a search of his cell at Green
Haven Correctional Facility (hereafter Green Haven). Trial of the matter was
held on October 17, 2005.
As an initial matter, the Assistant Attorney General made an oral motion to
dismiss based upon Claimant's alleged failure to exhaust his personal property
claims administrative remedy. In support of this application, the Defendant
offered the affidavit of David Smith, the Inmate Claims Officer at Green Haven.
[Exhibit A]. Mr. Smith indicates in his affidavit that his responsibilities
include maintaining a log of inmate personal property claims, and investigating
the claims as well
He states that there is no record of any claim
submitted by Jose Zorrilla in the log [id.
Additionally, Claimant testified
that he recalled filing a claim, but that there was no mechanism for getting a
copy of it. He had wondered why he never got a response to his claim. Indeed,
he wrote to the Claims Officer - in Spanish - on February 3, 2003 asking what
happened to the claim he had filed on November 23, 2002, but again never
received a response. [Exhibit 3].
Notably, Defendant did not raise the defense of failure to exhaust
administrative remedies in its Answer or in a pre-answer motion. The Court
reserved on the motion at that time, and allowed Claimant to present his
Claimant testified that he was not in his cell when it was searched on November
5, 2002 but "in the yard."
He returned to his cell to find property taken and a contraband receipt in its
place. [Exhibit 2]. The receipt lists as seized one (1) Radio Shack AM/FM Radio;
seven (7) alcohol pads; one (1) pair of headphones; one (1) Sony Walkman; one
(1) extra State mattress; and one (1) Norelco electric razor [id.
As rationale for the seizure, the contraband receipt indicates that the
"original DIN# scratched off" with respect to the radio, the Walkman, and the
electric razor [id.
The alcohol pads are listed as "contraband";
the headphones are denoted as "altered;" and the seizure of the mattress is
justified because there was "[n]o permit for double mattress." [id.
Claimant said that he waited "for a day" in order to see if "they would give
him a ticket for the items confiscated." When he was not furnished with a
ticket, he went to the officer to tell him that he had permits for the seized
items. Sometime thereafter, he was told that the items had "disappeared." One
week later he went to the "contraband room" showed the officer the receipts, but
was told the property was not there. He then "put in his claim."
Claimant seeks damages in the amount of $380.88. Using the actual cost of the
property, plus how much it cost to replace, Claimant indicated that he "rounded
up" the figures and added in the cost of his filing fees and "suffering". He
stated that he valued the electric razor at $49.00; the radio at $16.89; and the
headphones at $29.00. He also sought replacement of the Walkman, but could not
remember the value.
Claimant produced local permits for a calculator, issued on November 19, 1998;
Panasonic radio, issued on March or May 25, 2000; a Norelco razor, issued
November 19, 1998; and a Westbend hot pot, issued on December 29, 2000. [Exhibit
1]. The only local permit that appears to be relevant to this claim is the one
issued for the Norelco razor in 1998.
No other witnesses testified and no other evidence was submitted.
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). Notably, while a prospective Claimant applying for permission to serve
and file a late bailment claim must allege that he has exhausted his
administrative remedies in supporting papers, the bailment claim itself need not
affirmatively plead that administrative remedies have been exhausted. See
Edwards v State of New York
, Claim No None, Motion No. M-63697,
UID#2002-013-012 (Patti, J., March 21, 2002);
Rivera v State of New York
, Claim No None, Motion No M-64405,
UID#2002-031-009 (Minarik, J., March, 26, 2002).
More importantly, pursuant to Court of Claims Act §11(c) defenses based
upon a purported failure to comply with the time limitations contained in Court
of Claims Act §10 are waived if not raised with particularity in the Answer
or in a pre-answer motion.
It is incumbent upon a Defendant to plead the affirmative defense of a failure
to exhaust administrative remedies with particularity or else it is waived. The
only defense raised alludes to Claimant's alleged culpable conduct.
Accordingly, defendant's motion to dismiss on this ground is denied.
With respect to the substance of his claim, Claimant has partially established
at least a portion of his bailment Claim by a preponderance of the credible
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, in accordance with its
seizure during a cell search.
See generally Claflin v Meyer
, 75 NY 260 (1878); Ahlers v State
of New York,
(Claim No. 82543, Corbett, P.J., December 23, 1991). 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 (New York Dist. Ct. 1973). Receipts are the best
evidence of fair market value, although uncontradicted testimony concerning
replacement value may also be acceptable.
The local permit for the Norelco razor appears to be the only permit submitted
that applies with respect to this claim. [
Exhibit 1]. Issued in 1998, it attests to Claimant's ownership, and
establishes the value of the appliance as $49.00 when it was allowed by the
facility. The contraband receipt notes that the razor was seized and, while it
contains the signature of the officer conducting the search, as well as an
instruction - in English - that "[y]ou may write to the Deputy Superintendent
for Security within 7 days of this receipt regarding the confiscation or
disposition of these items," it does not contain any signature acknowledging
Claimant's understanding of what the document meant. As noted above, English is
not Claimant's primary language. Claimant pursued what remedies he understood
to obtain the return of his property.
The Claimant presented as a credible witness, whose testimony was completely
uncontradicted, and supported by what documents he had. Claimant's testimony
concerning the value of the Norelco razor, together with the local permit
presented, less applicable depreciation, establish the total loss as $40.00.
The razor was more than one (1) year old at the time of the loss, thus
depreciation is fairly applied to arrive at its fair market value as required.
See Schaffner v Pierce
at 24. There was no proof of
ownership and/or value with respect to the balance of the items listed in his
Accordingly, Claimant is hereby awarded damages in the amount of $40.00 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 November 5, 2002 to the date of this Decision, and thereafter to the
date of the entry of judgment pursuant to §§ 5001 and 5002 Civil
Practice Law and Rules.
It is ordered that to the extent that Claimant has paid a filing fee, it may be
recoverable pursuant to Court of Claims Act § 11-a(2).
Let Judgment be entered accordingly.