New York State Court of Claims

New York State Court of Claims

VELOZ v. THE STATE OF NEW YORK , #2006-030-033, Claim No. 107979


Pro se inmate established elements of bailment claim. Loss of $165.00 for damaged typewriter and print wheel, including applicable depreciation established through disbursement fund receipts, and uncontradicted testimony of credible claimant concerning cost and replacement value. Property packed in bags for transfer and then retained in DOCS custody for. State waived any defense of failure to exhaust administrative remedies because not raised.

Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

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Claimant’s attorney:
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Signature date:
December 4, 2006
White Plains

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See also (multicaptioned case)

Franciso Veloz alleges in his claim that Defendant’s agents at Green Haven Correctional Facility negligently damaged his personal property when he was due to be transferred to Livingston Correctional Facility on June 15, 2003. Trial of the matter was held on October 20, 2006 via video conference from Arthur Kill Correctional Facility, where Claimant is currently incarcerated.
Claimant testified that his property was packed up in draft bags. When he was ready the following morning to “sign for them”
, the transfer was cancelled or delayed because the van was broken. When he was reviewing the bags he saw that his typewriter was destroyed because of the mishandling of the bag by correction officers. The property was generally thrown about in the draft bags against the transporting wagons.
Mr. Veloz described in some detail how many of the typewriter parts were broken, including the case itself, keys, paper supporter, the platen knob, a “daisy wheel” printer; and how the value claimed for the totally destroyed typewriter - a “ML500 Brother typewriter” - would be $184.88. In addition, the bags used to store food had holes, and allowed “rats and mice” to damage the food. Mr. Veloz also claimed he suffered emotional injury due to the loss of his typewriter, because he was prevented from writing with the only tool he could use, since a right wrist injury prevented his writing by hand with ease.
After discovering the condition of his typewriter he made many attempts to have the typewriter fixed - including contacting the manufacturer repeatedly - but was not able to do so. [See Exhibit 1]. Ultimately, he authorized destruction of the typewriter in or about November 2003, because it was irreparable. [Ibid.]. He said that officers mishandle prisoners’ property and cause damage regularly, “not just to his property.”
In terms of value, in addition to his testimony, Mr. Veloz furnished disbursement request receipts showing that the cost of the typewriter when new on June 11, 2001 was $184.88; and the cost of a typewriter printwheel was $28.97 when new in May 2002. [Exhibit 2].
On cross-examination, Mr. Veloz confirmed that he was not being transferred because of any disciplinary problems. He explained that he had no control over how the foodstuffs was wrapped - “no plastic was allowed.” He confirmed that he had owned the typewriter since June 2001, and it came direct from the vendor. Because of damage to his right wrist, he explained that he had regularly used the typewriter since its purchase. He reiterated that he himself could not pack the typewriter, and that how any of the items were packed was under the control of the officers as he understood it.
Referring to a discussion Claimant had with a Sergeant concerning the damage to the typewriter, Mr. Veloz would not agree that the Sergeant had noted that the damage could be from normal wear and tear, and Claimant reaffirmed that parts of the typewriter, such as the daisy wheel printer were “just wrecked because of the impact” when the property was thrown by the officers.
No other 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). The State has a duty to secure an inmate’s personal property. Pollard v State of New York, 173 AD2d 906 (3d Dept 1991). A delivery of property to the bailee, and the latter’s failure to return it, 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 also be acceptable.
In this case, Claimant has established that he had surrendered certain personal property items to New York State Department of Correctional Services custody and control, and that the typewriter and the daisy wheel printer were destroyed while in their custody. Although it was not clearly established whether Claimant exhausted his administrative remedies [See Court of Claims Act §10(9); 7 NYCRR Part 1700], the issue was not raised therefore it is waived.
The Claimant presented as a credible witness, whose testimony was uncontradicted. Claimant’s testimony concerning the value of the typewriter and the daisy wheel printer, as well as the disbursement request receipts presented, together with applicable depreciation, establish the total loss as $165.00. 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 $165.00 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 June 15, 2003, to the date of this Decision, and thereafter to the date of the entry of judgment pursuant to §§ 5001 and 5002 Civil Practice Law and Rules. Claimant may recover any filing fee actually paid pursuant to the applicable procedure.
Let Judgment be entered accordingly.

December 4, 2006
White Plains, New York

Judge of the Court of Claims

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