New York State Court of Claims

New York State Court of Claims

ALSTON v. THE STATE OF NEW YORK, #2005-036-500, Claim No. 108146


An inmate is awarded $204.74 in a bailment claim. The State had "control and dominion" over Claimant's property, and thus a duty to secure it, from the point that they removed him from his housing unit, leaving the property vulnerable to theft. Claimant is not entitled to recover the value of perishable food items, however, for they were lost to him as a result of his confinement to SHU.

Case Information

BARRY ALSTON The caption has been amended sua sponte to reflect the proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Melvin L. Schweitzer
Claimant's attorney:
Barry Alston, pro se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New York
By: J. Gardner Ryan Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 19, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Barry Alston commenced this action against Defendant, State of New York, to recover the value of personal property that he alleged was lost as a result of the State's negligence. At trial of this action, which was held at Fishkill Correctional Facility, Claimant testified that on March 10, 2003, at approximately 11:00 a.m., shortly after he returned from his work assignment at the prison shop, he was taken from his housing unit, Unit 11-2, to the facility's Special Housing Unit ("SHU"). Later that day, his personal belongings were packed up by a Correction Officer and brought to SHU, where they were placed in storage. Later that same day, the Correction Officer brought Claimant a form, known as the I-64 (Exhibit A), which contained an inventory of the items that ostensibly had been packed up and transferred to SHU. The Correction Officer asked Claimant whether he wanted to sign it. Although he had not at that time personally examined the property that had been packed, Claimant signed the form.

Claimant asserted at trial that proper procedure had not been followed, in that he should have been given an opportunity to inspect the property himself or have the Correction Officer go through the property in front of him before he was asked to sign the I-64 Form. Nevertheless, according to Claimant, he "took his chances" on March 10 by signing the form when it was presented to him.

On the night of April 6, 2003, as Claimant was being readied for transfer from Fishkill Correctional Facility to Southport Correctional Facility, he was allowed to pack his property. It was at that time, he states, he discovered some of his items were missing. Those items were not listed on either the I-64 Form that he had signed on March 10, 2003 or a second I-64 Form that he signed on April 6, 2003 (Exhibit 3). Upon his arrival at Southport Correctional Facility the following day, Claimant filed an institutional claim to recover the value of the missing property. Claimant testified that he distinctly recalls seeing all of the items in question in his locker at approximately 10:45 a.m. on the morning of March 10, immediately after he returned from his work assignment and prior to his transfer to SHU. He stated that he saw them when he opened his locker to get coffee in order to prepare a cup for himself. He further explained that the "lockers" in this housing unit were, in fact, unlocked. In Housing Unit 11-2, each inmate had his own cubicle and locker, but there were no doors to the cubicle and no lock on the locker. There were 26 cubicles in the housing unit, and inmates who were housed there were able to walk into and out of the cubicles of other inmates.

On cross-examination, Claimant acknowledged that he did not know whether the missing items were in his locker immediately prior to the property being packed. He also acknowledged that other inmates saw him being taken from the housing unit and that he did not know what steps, if any, were taken by the Housing Officer to keep other inmates away from his locker prior to his belongings being packed and transferred to SHU.

Claimant presented the following list of the items alleged to be missing, along with the age of each item, its purchase price, and its condition:
Purchase Price

Aiwa AM/FM cassette
stereo Walkman 1 year $29.99 Very Good
Koss R/20 Headphones 1 year $14.75 Very Good
Cassette Tapes (22) 6 mos-1year $10.99 each ($241.78) Very Good

Food package 16 lbs,
perishable (J&E Warehouse)[1]2 days $49.90 Fresh at time of purchase

Facility permits for the Aiwa Walkman (Exhibit 1) and for the Koss headphones (Exhibit 2) were also placed into evidence.
Applicable Law and Discussion

A bailment is created when personal property of one person (the bailor) is delivered into the possession of another (the bailee) with the understanding, either express or implied, that the property will be redelivered to the owner in the same condition (
Claflin v. Meyer, 75 NY 260 [1878]; 9 NY Jur 2d, Bailments and Chattel Leases, § 1, p 13). If the property is not returned or, where a demand is required, the bailee fails to return it upon demand, the bailor has established a prima facie case based on the presumption of negligence (id., ¶ 147, pp 177-178). The bailee must then rebut that presumption, if possible, by showing that the loss was due to circumstances not within its control or that the property was damaged without its fault (id., ¶ 149, p 181; Weinberg v. D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977] or by establishing that it exercised ordinary care (see, Board of Educ. of Ellenville Cent. School v. Herb's Dodge Sales & Serv., 79 AD2d 1049 [3d Dept 1981]). With respect to property belonging to inmates within its prison system, the State has a bailee's common-law responsibility and duty to secure such property and may be liable for failing to carry out that duty (Pollard v. State of New York, 173 AD2d 906 [3d Dept 1991]).
Claimant was a credible witness, and his testimony was uncontradicted. Although he signed the I-64 Form on March 10, under the circumstances presented here, the Court does not view that act as confirming that the form was in every respect accurate. He was given no opportunity to view the property that had been packed and compare it to the form before signing it. The permits for his Walkman and headphones establish that at least those two items were in his possession at the facility.

The State presented no witnesses and, at the conclusion of trial, moved to dismiss the claim on the ground that there was no proof that a bailment existed. Defense counsel asserted that in order to prevail Claimant must prove "either that Defendant actively secured possession of the items or had a reasonable opportunity after [Claimant's] forcible departure to secure it against opportune theft."[2]
This argument overlooks entirely the fact that it was Defendant who was in control and in charge of events. Defendant had the power to determine whether and when Claimant was taken away, whether his property was packed up at the time he was moved to SHU, and, if it was not, whether and when correction officers returned to secure the property. Consequently, it is not Claimant's responsibility to prove at trial that all the property was present when the State actually took possession of it. Rather, it is the State's duty (barring exceptional circumstances such as fire or other emergency) to secure the inmate's property when, by its own actions, the property was left unattended.
Even where there is no formal transfer of property or mutual contract of bailment, a bailment is nevertheless implied when one comes into lawful possession of personal property of another (
Mack v. Davidson, 55 AD2d 1027 [4th Dept 1977]).
The determination as to whether the relationship is one of bailor and bailee turns on whether there is a relinquishment of exclusive possession, control and dominion over the property. Hurton v. Public Storage Management Inc., 177 Misc.2d 540, 676 N.Y.S.2d 886 (1998). It is essential that there be either actual or constructive delivery by the bailor as well as actual and constructive acceptance by the bailee. Mays v. New York, N.H. & H.R. Co., 197 Misc.2d 1062, 97 N.Y.S.2d 909.
(Miranda v. All Car Sales Inc., 2003 WL 22056729 [NYC Civ Ct 2003]).
When Claimant was removed from his housing unit and taken to SHU, the "control and dominion" over his property passed from him to the State. The State officials were fully aware that the property was in their control, as evidenced by their subsequent action in packing it up and moving it to another location. If, as Defendant hypothesized, the property was allowed to remain in the cubicle, unsecured, so that it could be stolen by other inmates, then the decision to allow that to occur was entirely within the State's control. Permitting foreseeable theft would be a breach of the duty owed by the bailee to the bailor.
The measure of recovery when bailed property is not produced upon demand is the fair market value of the property, that is, the value of the original purchase price less a reasonable rate of depreciation (
Phillips v. Catania, 155 AD2d 866 [4th Dept 1989]). Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable. The values ascribed by Claimant to most of his missing property appear to be reasonable and were not challenged or questioned by Defendant. In the Court's view, however, the value of used cassette tapes is somewhat overstated and will be reduced to $8.00, for a total of $176.00 for that item. With respect to the perishable food items, § 301.6 of the Rules and Regulations for the Department of Correctional Services (7 NYCRR § 301.6[c]) provide that inmates assigned to SHU are subject to the property limitations set forth in § 302.2 of the regulations. Subdivisions (a) through (e) of § 302.2 list the specific items that an inmate can possess while in SHU, a list that does not include any sort of food items. Subdivision (g) (1) of § 302.2 provides that all other items are to be "confiscated upon admission and securely stored in accord with the provisions of department directives concerning ‘Inmate Property--Temporary Storage of Personal Belongings.' " Although no department directives are before this Court, the provisions of Directive 4913, apparently applicable to perishable food items in such a situation, was addressed in Rivera v. State of New York (#2005-013-014, Claim No. 108835, Motion Nos. M-69692, M-69728, Ct Cl, April 15, 2005): "[S]ince by rule [the inmate] was not permitted to have personal food items in SHU, and they purportedly could not be stored since they were deemed perishable, he was required to direct disposition of those items." The Court there made reference in its decision to a form that is given to an inmate that permits him to select an option for disposition of perishables. Indeed, Claimant here argued that if the food items were considered perishable, he should have been given the option to direct that they go to charity. This allusion by Claimant to a possible breach of duty on the part of Defendant in connection with the perishable food items – violation of its own rules and regulations regarding disposition of such property – may indeed translate into a cause of action for compensatory money damages (see generally, Barrett v. State of New York, #2000-001-036, Motion No. M-60959, Ct Cl, June 30, 2000, Read, J.). However, Claimant left open several matters requiring testimony and other evidence in order for the Court to make such a determination. In any event, Claimant has not sued for damages resulting from deprivation of his right to select the destination for his food items, but, rather, he has sued to recover for loss of the food itself. Because Claimant lost the right to retain possession of the food as a result of his confinement in SHU, not through any breach of duty on the part of correction officers, he is not entitled to recover for that loss.
Claimant is awarded damages in the amount of $220.74, plus appropriate interest from April 6, 2003. To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

Let Judgment Be Entered Accordingly.

August 19, 2005
New York, New York

Judge of the Court of Claims

[1] Testimony at trial established that the food package was comprised of items, such as muffins and kielbasa, that are without question perishable.
[2] Unless otherwise noted, all quotations are from the Court's notes or the audio recording of the proceedings.