New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2006-030-027, Claim No. 107673


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:
October 20, 2006
White Plains,

Official citation:

Appellate results:

See also (multicaptioned case)

Ramon Lopez alleges in Claim number 107673 that Defendant’s agents negligently and/or intentionally allowed his personal property to be stolen from his cell when he was incarcerated at Green Haven Correctional Facility [hereafter Green Haven] in 2001. Trial of the matter was held at Sing Sing Correctional Facility on August 25, 2006.
Mr. Lopez testified that on August 29, 2001 he was taken from the east-side yard at Green Haven after “an incident there”
to the facility hospital for treatment. At the time he was housed in the top bunk of a double-bunk cell numbered F-245. He stayed in the hospital until September 6, 2001. When he was released, he did not return to the same cell, but rather was moved to another double-bunk cell, number F-244. He said that rather than pack up his property as required by facility Directive 4934, it appeared that personnel left his property first in the old cell, in full view of everyone, and then in the new cell in full view as well, without having “packed it up or I-64-ing it.” They left his property on top of his bed. Mr. Lopez explained that “the double-bunk is a very unsecure cell. Everyone is walking back and forth, back and forth.”
The property Claimant testified was lost includes: one (1) Coby set of headphones ($23.99); one (1) Sony cassette player ($22.99); one (1) UL clip-on lamp ($14.00); one (1) GE Superadio ($42.99); one (1) pair of Reebok Sneakers ($50.00); one (1) pair Timberland boots ($50.00); twenty five (25) cassettes ($199.75); eleven (11) personal shirts ($65.00); one (1) Coby electric adapter ($7.99); one (1) pair Mizuno spikes or cleats ($46.98); four (4) sweatshirts ($40.00); one (1) pair of sweatpants ($10.00); and two (2) bed sheets ($10.00). The total sum claimed is $583.69.
Claimant was able to furnish some receipts and disbursement-fund requests for some of the items claimed. [See Exhibit 1]. He also submitted two (2) contraband receipts dated August 29, 2001, one of them showing seizure of one white T-shirt and one green jacket, apparently taken from the Claimant’s person when he was removed to the hospital [Exhibit 2], the other presumably reflecting a search of cell F-245T showing that there was no contraband found. [ibid.]. A photocopy of Directive 4934 dated December 23, 1994 was also submitted [Exhibit 3], as was an I-64 inventory form reflecting property inventoried at Auburn Correctional Facility, and apparently received at Green Haven on June 5, 2001, upon Claimant’s transfer there. [Exhibit 4]. The inventory form reflects by inference that as of June 6, 2001, when Claimant signed for his property at Green Haven, he was in possession of at least some of the property claimed lost herein. [id.].
On cross-examination Mr. Lopez confirmed that it was because he was taken from the yard directly to the hospital unit that he was unable to secure his property in his cell, and that on his return he was placed in the cell immediately next to his old cell. When he arrived, there was no personal property there, “maybe a few socks and some papers,” but there was “nothing there.” Almost immediately thereafter he was moved to the “A-1 unit.” With further questioning, however, Claimant conceded that “pretty much everything” that was listed on the I-64 form from June 6, 2001 was still in his cell, except the items listed in this claim. [See Exhibit 4].
Mr. Lopez admitted that his facility claim was denied, but would not concede that it was denied because he “lied,” as suggested by the State. [See Exhibit A]. Notably, the form indicates that the facility claim was disapproved because the “[e]vidence indicates that the facility was not at fault or in any way responsible for the loss or damage,” and also indicates by way of explanation that “several items inmate claimed were stolen were in his cell.” [Id.]. Claimant would not, however, concede that this determination that items he claimed were missing were actually in his cell is accurate. He claimed that in the interim between the original loss and the investigation of his claim, including an alleged February 2002 search of his cell in which personnel claimed items he asserted were stolen were found in his cell, his family had replaced the items, and that “the package room records would show this.” Similarly, he denied that a contraband receipt [Exhibit C] and an authorization for disposal of personal property [Exhibit D], both dated November 19, 2001, and reflecting his possession at that time of a GE Superadio, referred to the same radio he testified was stolen sometime between his August 29, 2001 trip to the facility hospital and his return to his cell on or about September 6, 2001. He credibly insisted that since the original theft his family had helped him replace some things, and he, by his own labor as a cook in the facility mess hall, purchased replacements as well. He further explained that the package room records would show this, but he did not have them. Mr. Lopez also noted that if an officer searched his cell in February 2002, as urged by the State during the cross-examination, that officer was required to make a record of the search, and none was offered.
Claimant also agreed that he was only entitled to possess 25 cassette tapes. He admitted that he had “a lot more” but only made a claim for the number allowed.
No other witnesses testified, including any State witnesses, and no other evidence was submitted.
This claim is in the nature of 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). In this case too, a facility directive - Directive 4934, the only regulation presented - requires that the property be secured under the circumstances presented here, when an inmate’s property cannot be packed up in his presence because he has been removed to the hospital or elsewhere, such as a special housing unit. [See Exhibit 3].
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].
While the Court suspects that Claimant did not exhaust his administrative remedies [see Court of Claims Act §10(9); 7 NYCRR Part 1700] since the facility claim form does not indicate an appeal was taken, because Defendant did not plead the defense, it is waived. The Claimant presented as a credible witness, whose testimony was uncontradicted and verified by some documentary evidence.
In this case, Claimant has established that the New York State Department of Correctional Services failed to secure Claimant’s property when he was removed from the yard and placed in the hospital for approximately eight (8) days, and that some property was lost or stolen while it remained the responsibility of the facility to secure it. The Court finds that Claimant has established the required elements of his loss based upon his testimony and the somewhat limited documentary evidence as to one (1) set of Coby headphones, one (1) Coby adapter, one (1) pair of Mizuno spikes, one (1) pair of Reebok sneakers, and fourteen (14) cassette tapes.
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 no value was satisfactorily established through testimony or receipts.
In terms of value, Claimant’s testimony together with a comparison of the disbursement forms and receipts [see Exhibit 1] establishes the total loss as Two Hundred Thirty ($230.00) Dollars. Some of the items were more than one-year-old at the time of the loss, thus depreciation is fairly applied to arrive at fair market value. See Schaffner v Pierce, supra at 24.
Accordingly, Claimant is hereby awarded damages in the amount of $230.00 plus statutory interest [State Finance Law §16; Civil Practice Law and Rules § 5004], which the Court finds presumptively reasonable, from the date of accrual of September 6, 2001 to March 6, 2002, and then from April 28, 2003 to the date of 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 20, 2006
White Plains, , New York

Judge of the Court of Claims

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