New York State Court of Claims

New York State Court of Claims

McKINLEY v. THE STATE OF NEW YORK , #2005-030-036, Claim No. 107293


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:
November 9, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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, 2005.

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."[1]
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." [
id.]. 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. [id.].
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. [
See 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. [
See 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 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 (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 York, 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. [
See Exhibit 5].
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.

November 9, 2005
White Plains, New York

Judge of the Court of Claims

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