Sincere McKinley alleges in Claim Number 107293 that Defendant's agents
negligently or intentionally lost his personal property when he was transferred
from his cell to the Special Housing Unit (SHU) at Green Haven Correctional
Facility (hereafter Green Haven). Trial of the matter was held on October 17,
Claimant testified that on March 27, 2002 he was packed up for transfer to the
SHU at Green Haven. He had recently been transferred from Southport
Correctional Facility (hereafter Southport) - he said "and had only been at
Green Haven since February."
He alleged he still had not received all the property sent from there when he
was moved to SHU. When he was moved to SHU he was escorted by several officers,
the property was left "all over the place in the cell, and the cell was
secured." He recalled that Officer O'Connor packed up the property, but when
Claimant was in SHU "a couple of days", Officer Austin "up in SHU wouldn't let .
. . [him] have . . . [his] property, saying ‘this is all they sent up'."
He did not know how his property got lost, or how someone gained access to what
should have been a secured cell; all he knew was that items were missing.
Claimant said: "I never even got a chance to get to the population . . . I was
on keeplock all the time; so it's not like I had been there for a while and sold
things or something like that."
Thereafter, Claimant filed a facility claim which was denied. [Exhibit A].
Claimant said that the facility claim was denied because he could not verify
that he had the property - he "had local permits, etc., but they beat . . .
[him] up on it" with regard to the facility claim. Paragraph 16 of the claim
filed in this Court indicates that the personal property administrative claim
was denied on October 11, 2002.
Claimant testified that "they lost 16 tapes he had just bought; and a walkman",
among other things. The "tapes run from anywhere from $8 to $10 to $11 each and
they were brand new; [he was also missing] sheets and things."
An inmate grievance against an individual officer or officers appears to have
been pursued as well. [Exhibit 3]. The action requested by Claimant therein was
that the department "[c]ome up with all my 14 cassette tapes and other items or
paid me for everything that is missing and don't beat me in the head that I
never had these items its on my I-64 form in IRC in March 2002. I know it was
in retaliation against me and incompetency and failure and neglect in the
performance of duties." [
In upholding the Superintendent's determination that the
officer had packed up all the property that was in Claimant's cell, and that
there was no malfeasance, the Central Office Review Committee noted that
Claimant had a right to proceed with the inmate personal property loss claim.
The claim filed in this Court lists as missing: "16 cassette tapes, one set of
Jwin headphones, cassette tape player, dress white shirt, 3 sets jockey brief
underwear fruit of the loom, 4 washcloths, all my cosmetics, 10 writing pads, 22
pens, 25 legal size big envelopes", and demands $2500.00. [Claim No. 107293;
¶ 9]. Although Claimant submitted some I-64 inventory forms and some local
permits, there was little testimony on direct examination as to how they related
to this property loss claim. [
Exhibits 1 and 5].
An I-64 form dated February 18, 2002 completed at Southport, and then signed by
Claimant at Green Haven on February 27, 2002, notes that there were 7 bags sent
from the facility, but does not list any of the property claimed as lost here.
Exhibit 1]. The I-64 form completed on March 27, 2002 for the
transfer within Green Haven to SHU again refers to 7 bags of property, was
packed up outside of the presence of the Claimant according to the form, but was
then signed off on by the Claimant without any indication that property was
missing. [Exhibit 1]. Items that may be relevant that are inventoried on the
form include 2 shirts, 2 jockey underwear, 1 cassette tape, 6 wash cloths, and
Jwin headphones [Exhibit 1], and one of the local permits dated February 27,
2002 lists Jwin headphones and values them at $8.00. [Exhibit 5]. Admitted on
consent without any explanation is a handwritten document entitled "tapes thats
missing" and setting forth the names of 16 recordings. [ Exhibit 6].
On cross-examination Claimant conceded that the facility claim form [Exhibit A]
lists slightly different property as missing in the "evaluation schedule"
portion as that listed in the claim filed in this Court. He also conceded that
he signed the I-64 form without indicating that property was missing on March
27, 2002 when he arrived at SHU, and that it was in April that he finally took
stock of what he possessed or was missing. He explained that in the
administrative claim he "didn't list everything that was missing; and . . . [he]
was told the property was ‘in draft'." He continued to maintain that the
I-64 form dated March 27, 2002 never listed all his property in the first place
-"stuff was already missing when the officer was filling it out" - but said he
was not aware anything was missing until April 15, 2002 when he filed the
facility claim. When he filled out the administrative claim, he put in "what
was most important to . . . [him] at the time." He said he "was angry at the
time . . . [he] filled out the administrative form; they were rushing . . .
[him]." Claimant agreed that he had been in jail for 23 years on March 27, 2002,
and had a lot of personal property. When asked to compare the administrative
claim form to the claim filed in this Court, Claimant agreed that the
administrative form did not include the 10 writing pads, the 22 pens - that he
now valued at "$.28 each or approximately $10.00" - and the 25 envelopes - now
valued at "perhaps $.11 each or $5.00" - that are listed in paragraph 9 of the
present claim. He explained that "these are not important - what was important
to . . . [him] was the cassette tapes."
No other witnesses testified and the only other evidence submitted does not
assist in establishing the necessary elements of a bailment claim. [Exhibit 2].
This claim is one alleging negligence by the alleged bailee in a bailment
created between Defendant and Claimant by the alleged delivery of Claimant's
personal property into the custody of Defendant's employees.
See generally Claflin v Meyer
, 75 NY 260 (1878); Ahlers v State
of New York,
(Claim No. 82543, Corbett, P.J., December 23, 1991). It is
axiomatic that 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
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. Personally meaningful items, such as
photographs, have no fair market value. [See Benton v State of New
, Claim No. 94337, Collins, J., July 8, 1999].
In this case, while the Court appreciates that Claimant essentially testified
without contradiction, his testimony did not - where relevant - make out all
the elements of a bailment claim by a preponderance of the credible evidence.
There is little to no proof that Claimant owned or possessed the property now
claimed as lost in the first instance. In this regard, Claimant did not furnish
any receipts, and the only property claimed lost that he established was in his
possession prior to his transfer to SHU were the headphones, through the local
permit issued on February 27, 2002. [
There was little evidence of delivery, because the I-64 inventory form does not
sufficiently describe what was packed up for his transfer within the facility.
While the Court would consider persuasive the fact that the property was
apparently packed up outside the presence of the Claimant, and thus what was
noted on the form was within the exclusive control of the State's agents and
therefore any omissions are chargeable to the Defendant, Claimant did not
sufficiently explain why he then signed the form on the receiving end without
protest. He initiated all his complaints more than three weeks after his
transfer. While the Court is not convinced that he deliberately may have
misstated what property he owned - the Court appreciates that in 23 years one
can accumulate a lot of property - the Court finds that Claimant has simply not
established that a bailment was established in the first instance.
Finally, even if there was a bailment created, and the State failed to exercise
reasonable care, no satisfactory evidence of value was submitted.
Accordingly, Claim number 107293 is hereby dismissed in its entirety.
Let Judgment be entered accordingly.