At trial of this action, Claimant Howard Sutter testified that on January 11,
2000 he was removed from his cell at Elmira Correctional Facility and
transferred to the facility's Special Housing Unit (SHU). Early in the
morning, two officers came to his cell and told him that he would be going to
SHU. His property was packed up at that time, into six property bags, but no
inventory was taken. Claimant testified that he was never given an I-64
(Personal Property Transferred) form for that date.
According to Claimant, he was supposed to receive his property within 72 hours
but as that deadline approached, he was told that he wouldn't be receiving his
property because he was being transferred to another facility the following
morning. Claimant was then transferred to SHU at Cayuga Correctional Facility,
and he again had to wait 72 hours to receive his property. When he finally
received the property, it was in only four bags and he discovered that a number
of items were missing.
The missing property is listed in paragraph 2 of the claim and Claimant
testified that the assigned value, which totaled $472.28, represented the
purchase price of the items.
As proof of ownership of the typewriter, Claimant introduced an Elmira
Correctional Facility form, dated August 28, 1999, which lists a portable
typewriter with case as belonging to Claimant.
On cross-examination, Claimant was asked if he had filed a facility claim,
which he said he had, producing a copy of the decision of that claim (Exhibit
When asked if he had appealed that determination, he said that he had done that
as well, but he had no document to establish that, and no information about an
appeal appears on Exhibit 10.
On its case, Defendant called Sgt. Kevin Thatcher, a correction officer at
Elmira Correctional Facility. He stated that when an inmate is taken to SHU,
the correction officer doing the transfer gives the inmate property bags,
directs him to pack up the property himself, and then puts it in the back of the
cell. The officer then takes the inmate, without the property, to SHU. Once
the admission process is completed, he goes back to the cell and takes the
property to a "pack-up area" where the property officer does the actual packing.
Sgt. Thatcher did not carry out the pack-up of Claimant's belongings.
Placed into evidence were copies of an I-64 form completed on January 13, 2000,
at the time that Claimant was transferred from Elmira Correctional Facility to
Cayuga Correctional Facility (Exhibit A, p1; Exhibits 2, 3) and an I-64 form
dated January 16, 2000, when Claimant was transferred from Cayuga Correctional
Facility to Auburn Correctional Facility (Exhibit A, p 2).
The January 13, 2000 I-64 form contains Claimant's signature, indicating that
he acknowledged the pack-up and listing of property. After the transfer to
Cayuga Correctional Facility, the property was received on that date, but on
that occasion it is indicated that Claimant refused to sign the acknowledgment.
The January 16, 2000 I-64 form lists the property that was packed up at Cayuga
Correctional Facility on January 16, 2000 and subsequently unpacked at Auburn
Correctional Facility on March 9, 2001. On that form, Claimant signed an
acknowledgment in both boxes.
On cross-examination, Claimant pointed out that there was no I-64 form for the
pack-up that, according to Sgt. Thatcher's testimony, would have occurred on
January 11. Sgt. Thatcher agreed that there must be a missing document because,
he said, the property would never have been accepted at SHU if it had not been
accompanied by a completed I-64, and the subsequent January 13 form had been
completed by SHU officers.
A bailment exists when property is delivered from one person (the bailor) to
another (the bailee) "for a particular purpose under the express or implied
contract with the understanding that it shall be redelivered to the person
delivering it, or kept until he reclaims it after fulfillment of the purpose for
which it was delivered" (2A NY Jur 2d, Agency, § 6). If the bailor
establishes that he or she owned the property, gave possession of the property
to the bailee, and that the property was not returned or, where a demand is
required, the bailee fails to return it upon demand, then the bailor has
established a prima facie case based on the presumption of negligence (9 NY
Bailments and Chattel Leases,
117). The bailee
must then rebut that presumption, if possible, by showing that the loss was due
to circumstances not within his control or that the property was damaged without
his fault (id.
This is a difficult case to decide because Claimant appeared to be credible and
his claim for damages was both detailed and reasonable. In addition, it is
possible, as Claimant argues, that some if not all of his property was lost or
stolen between January 11, when it was taken from his cell, and January 13, when
it was inventoried in SHU prior to Claimant's transfer to Cayuga Correctional
Facility. The State's failure to provide Claimant with a copy of that I-64 or
to produce it at trial lends support to that theory.
On the other hand, the January 13, 2000 I-64, listing the property that was
shipped from Elmira Correctional Facility, was signed by Claimant, something
that he would not have done if, at that time, there was missing property. It
must be noted that that form does not indicate that a typewriter was included in
Although Claimant testified that he never saw his property after he left it in
his cell, until it was given to him at Cayuga Correctional Facility, he did not
deny that his signature appears on the form, acknowleding the pack-up of that
property on January 13. The Court also notes that the rather distinctive
handwriting used in the signature also appears on the claim and other documents
Without any explanation for how Claimant's signature came to be on the I-64
form that was completed on January 13, 2000 that is consistent with his account
of events, the Court must hold that he has failed to carry his burden by a
preponderance of the credible evidence. By signing that form, he in effect
acknowledged that the inventory contained all of the property then in his
possession. By signing the second I-64, dated January 16, acknowledging that
essentially the same items constituted the property in his possession on that
date, Claimant has prevented the Court from holding that on January 11, 2000 he
had in his possession certain property that was then turned over to the State's
sole custody and never returned to him.
The Chief Clerk is directed to enter judgment in favor of Defendant, dismissing