New York State Court of Claims

New York State Court of Claims

SUTTER v. THE STATE OF NEW YORK, #2006-028-007, Claim No. 102360


In a prison bailment action, the fact that Claimant signed an I-64 form acknowledging that his property was packed up properly, he is unable to prove that certain items not on that list were lost or stolen while in the State's possession.

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:
BY: Joseph Romani, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 8, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

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.[1]
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 10).[2]
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.[3]
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 Jur 2d, 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 the property.[4]
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 in evidence.
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 the claim.

February 8, 2006
Albany, New York

Judge of the Court of Claims

[1] The list of items (together with indication as to whether they are listed on the January 13, 2000 I-64 form is as follows:
Typewriter 1 year, good condition $120.00 No
14 cassette tapes 3-4 months, good condition $118.86 11 listed
7 magazines 2 months, good condition $35.00 6 listed
Book 2-3 weeks $10.00 5 listed
Scarf new (Exh 6) $6.50 2 listed
3 pr wool socks new (Exh 6) $11.50 13 listed
4 net bags new $15.00 No
Aim toothpaste unopened $3.00 5 listed
Henley shirt not worn $19.00 12 shirts listed
Brown shirt not worn, 1 year $25.00 12 shirts listed
40 cans bean, corn unopened $14.00 1 bag of food
3 jars peanut butter unopened $3.54 "
Mayonnaise unopened $2.16 "
Honey unopened $1.17 "
4 kipper snack unopened $2.16 "
4 fish steaks unopened $1.80 "
2 salmon unopened $5.98 "
Protein powder unopened $5.00 "
4 cans minced clam unopened $6.00 "
2 octopus unopened $6.06 "
4 tuna unopened $5.17 "
3 black pens new $3.60 No
1 glue new $0.78 No
[2] Although the majority of the claim was disapproved, he was awarded $41.00. At trial, Claimant testified that the $41.00 was for a watch that he had lost along with the other property. The watch is not included in the items for which Claimant now seeks compensation.
[3] Defense counsel suggested that if Claimant was unable to prove that he had appealed his institutional claim, he was therefore unable to establish that he had exhausted his administrative remedies and that his claim was timely filed. Counsel is incorrect. Neither defense (untimeliness or failure to exhaust administrative remedies) was raised in the State's answer. Untimeliness must be raised in the answer or by a pre-answer motion or it is waived (Court of Claims Act § 11[c]), and failure to exhaust administrative remedies is an affirmative defense that must be pled and proven by Defendant (Zorrilla v State of New York, Ct Cl, Claim No. 107131, UID #2005-030-035, November 4, 2005, Succimarra, J.; McKenzie v State of New York, Claim No. 108664, Motion No. M-67967, UID #2004-032-027, April 26, 2004, Hard, J.; Rivera v State of New York, Ct Cl, Motion No M-64405, UID#2002-031-009, March 26, 2002 Minarik, J.; Edwards v State of New York, Ct Cl, Motion No. M-63697, UID #2001-013-026, December 7, 2001 and UID #2002-013-012, March 21, 2002, Patti, J.).
[4] It is not possible to determine if the other items for which Claimant is seeking compensation were inventoried on the form. Shirts, scarves, socks, books, cassette tapes and food items are listed in sufficient quantity to include the listed items but without sufficient description to determine if they are the same. The second I-64, listing property that was packed-up at Cayuga Correctional Facility, contains essentially the same items and number of items.