New York State Court of Claims

New York State Court of Claims

SANDERS v. THE STATE OF NEW YORK, #2006-030-026, Claim No. 107950


Synopsis

Pro se inmate established elements of bailment claim in part. Loss of $130.00 for lost or stolen property, including applicable depreciation established through receipts, and uncontradicted testimony of credible claimant concerning cost and replacement value. Property packed outside his presence when transferred to SHU. Property in DOCS custody for six months. State waived any defense of failure to exhaust administrative remedies because not pleaded.

Case Information

UID:
2006-030-026
Claimant(s):
GREGORY SANDERS
Claimant short name:
SANDERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107950
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
GREGORY SANDERS, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
October 19, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

Decision
Gregory Sanders alleges in Claim number 107950 that Defendant’s agents negligently and/or intentionally lost or damaged his personal property when he was incarcerated at various correctional facilities in 2001. Trial of the matter was held at Sing Sing Correctional Facility on August 25, 2006.
Claimant testified that on or about June 27, 2001 he was residing at Great Meadow Correctional Facility [hereafter Great Meadow] when he was transferred directly to the special housing unit [hereafter SHU] of Green Haven Correctional Facility [hereafter Green Haven], and never received his personal property - “97 items”
[1]
- upon the transfer. Thereafter he was again transferred, this time to Wende Correctional Facility [hereafter Wende], arriving there on December 30, 2001. He had only “52 items” when he arrived at Wende - his property was “I-64'd at that time” - but most of his property, if not missing, was damaged. He testified that he was “missing 47 items”, but is only claiming monetary recovery for one (1) pair of boots ($50.00); one (1) personal shirt ($20.00), six (6) personal photographs ($50.00); one (1) pair of “personal sneakers” ($29.00); nine (9) cassette tapes ($7.00 each); eight (8) “sex books” ($7.99 each); one (1) personal typewriter that was “destroyed” ($105.00); one (1) hot pot ($19.00) and one (1) pair of “State glasses” ($15.00). He explained that with respect to the glasses, although inmates are given free glasses initially, if they are lost the inmate must pay the replacement cost of $15.00. The total amount requested is approximately $400.00. The items he testified to are those listed in his facility claim, although the values he assigned in testimony are slightly different from the values noted in the facility claim form. [See Exhibit B].
A series of disbursement request forms from various dates were admitted in evidence, to show the purchase price of some of the items claimed [Exhibit 1], as were two I-64 inventory forms [Exhibit 2], although no specific testimony was given to link the disbursement forms to the property listed above. One I-64 form is dated June 26 or 27, 2001, and documents items checked at Great Meadow; the other form is dated as received at Wende on December 30, 2001. [See Exhibit 2].
On cross-examination, Mr. Sanders confirmed that he had been transferred from Great Meadow directly to the SHU at Green Haven, and had been placed in SHU on other occasions in other facilities as well. Claimant indicated he was aware that his property “would not go with him” to SHU but would, rather, be kept in storage. He said however, that although only very limited property can be put in with an inmate in SHU, an inmate is allowed his legal work. Indeed, it was his understanding that his property was in the Green Haven storage - “all four bags” - throughout his stay there. He conceded that the property was packed up in his presence at Great Meadow, but would not concede that he had any control as to the methodology. He conceded that when he arrived at Wende he also had four bags, however he stated that he did not have all the property that should have been contained therein. He agreed that he “signed for what was there.” For example, he said, the typewriter “ was there,” but it was “destroyed”. When asked whether the typewriter had been packed in his presence, Claimant indicated that it had, but reiterated that he had no input as to how it was packed.
The hot pot “ was there” as well when he reviewed his property at Wende, but Claimant would not concede that it was destroyed pursuant to authorized procedures because he lacked a permit, saying “you don’t need a permit for a hot pot.” Viewing Exhibit 2 - the I-64 form for Wende containing a notation that the hot pot was destroyed and a Form 2068 was completed - Mr. Sanders would not agree that the hot pot was destroyed as contraband, saying that what actually happened was that it was destroyed in shipping, and then the authorities said he could not have it because it was “no longer good.”
Claimant agreed that he brought a facility claim with regard to his property, but did not agree that his claim was denied in part relative to the hot pot because it was determined that its destruction was authorized and proper procedure and documentation accompanied the destruction. Indeed, a review of the disposition of his facility claim sets forth the following as the rationale for the disapproval: “Inmate Sanders received and signed for his property on 12/30/01. At this time, no indication was made regarding any missing or damaged property.” [Exhibit B].
In SHU at Green Haven, he affirmed, he did not have any personal shirts with him, only State-issued shirts. With regard to the sneakers, the Great Meadow form shows 3 sneakers inventoried, the Wende form shows 2 sneakers inventoried. [Exhibits 2 and C]. Mr. Sanders would not agree that the Wende form showed that the number 2 was superimposed over a 3, and instead said that to him it appeared that the number 3 was attempted to be superimposed over the number 2 by “someone.”
Finally, Mr. Sanders agreed that in order to make a personal property claim of loss he compared the form prepared at Great Meadow with the form prepared at Wende; each prepared by a different person who would likely identify or characterize the property differently.
No further witnesses testified and no other evidence was submitted.
This claim is one alleging negligence by the alleged bailee in a bailment created between Defendant and Claimant by 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). The State has a duty to secure an inmate’s personal property. Pollard v State of New York, 173 AD2d 906 (3d Dept 1991). As an initial matter a Claimant must establish that he owned the property in the first instance. A delivery of property to the bailee, and the latter’s failure to return it in the same condition, 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 suffice. Personally meaningful items, such as photographs, have no fair market value beyond the cost of film. [See Benton v State of New York, Claim No. 94337, Collins, J., July 8, 1999].
The Court is satisfied that Claimant exhausted his administrative remedies. See Court of Claims Act §10(9); 7 NYCRR Part 1700.
[2]
Claimant, at least, presented as a partially credible witness, whose testimony was largely uncontradicted, and verifiable by some documentary evidence. In this case, Claimant has established that certain property was in the custody and control of the New York State Department of Correctional Services for six (6) months, and that some property was lost while in their custody. Using the methodology suggested by the Assistant Attorney General in his cross-examination of the Claimant, and approved by Claimant, that is, comparison of the inventory form completed at Great Meadow with the contents of the inventory form completed at Wende, the Court finds that Claimant has established the required elements and his loss as to one (1) pair of boots, one (1) personal shirt, one (1) pair of sneakers, nine (9) cassette tapes, and one (1) pair of glasses. The fact that he signed the inventory form at Wende, given his credible explanation that he “signed for what was there,” does not conclude the matter. Moreover, the indication in the facility claim that there was no indication on December 30, 2001 that there was missing or damaged property is not conclusive either where, as here, the inmate had not seen the property in order to take stock of his possessions for six (6) months.
With regard to the balance of the recovery sought, Claimant did not establish all the required elements of a bailment, including ownership, delivery, failure to return and/or value. Items were either not shown as in his initial possession, thus not satisfying the element of ownership, or not listed on the inventory form at Great Meadow, thus not establishing delivery. Additionally, he did not show that there was unauthorized disposition of the property with regard to the hot pot; or that the property was damaged, with regard to the typewriter.
In terms of value, Claimant’s testimony together with a comparison of the disbursement forms [see Exhibit 1] suggests that the value of the boots when new in 1998 according to the disbursement form was as he indicated, $50.00; and the value of the cassette tapes is accepted on the basis of the testimony and the disbursement forms as totaling $63.00, and the value of the shirt and the sneakers when new are accepted as $20.00 and $29.00 respectively. The Court accepts that the replacement cost for the State-issued glasses is $15.00. Claimant’s testimony concerning the value of the property lost, as well as the disbursement receipts presented, inclusive of depreciation, establish the total loss as $130.00. Some of the items were more than one (1) year old at the time of the loss, thus depreciation is fairly applied to arrive at fair market value as required. See, Schaffner v Pierce, supra at 24.
Accordingly, Claimant is hereby awarded damages in the amount of $130.00 plus statutory interest [§16 State Finance Law; § 5004 Civil Practice Law and Rules], which the Court finds presumptively reasonable, from the date of accrual of December 31, 2001, to June 30, 2002, then from June 30, 2003 to the date of this Decision, and thereafter to the date of the entry of judgment pursuant to Civil Practice Law and Rules §§ 5001 and 5002.
To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).
Let Judgment be entered accordingly.

October 19, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. All quotations are to audio recordings or trial notes unless otherwise indicated.
[2]. In any event, Defendant did not plead any alleged failure to exhaust administrative remedies, thus the defense is waived.