New York State Court of Claims

New York State Court of Claims

FIGUEROA v. STATE OF NEW YORK, #2006-038-002, Claim No. 108002


Claim for value of television lost during intra-facility granted; defendant did not demonstrate that inmate porter was not under its control or that television was disposed of by claimant prior to its alleged loss

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:
ELIOT SPITZER, Attorney General of the State of New YorkBY: FREDERICK H. McGOWN, III, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 23, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant filed this bailment claim on July 11, 2003, seeking money damages for personal property – a television – that was allegedly lost concomitant to his transfer from Upper F block to D block in Clinton Correctional facility (hereinafter “Clinton”). The trial of the claim was held at Clinton on September 19, 2006. Claimant offered his own testimony; defendant offered the testimony of New York State Department of Correctional Services Sergeant George Shepler. Numerous documents offered by both claimant and defendant were received into evidence.

An inmate may assert a claim against the State sounding in bailment (see Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). The State has a bailee’s common law duty to secure the property of inmates within the State’s prison system and may be liable for failing to carry out that duty (see id.). To establish a prima facie case, a claimant must establish that he or she delivered property to facility officials and that the property was not returned (see Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; Alston v State of New York, 9 Misc 3d 1126[A], 2005 NY Slip Op 51796 [U], *2 [Ct Cl 2005]). An implied bailment arises, and the State becomes a bailee, when a correctional facility exercises dominion and control over the property of an inmate who is being transferred from one housing assignment to another (see Alston v State of New York, supra at *3). When a prima facie case is established, the burden shifts to the bailee to rebut the presumption of negligence by demonstrating that the loss was due to circumstances not within its control or that the property was damaged without its fault, or by establishing that it exercised ordinary care (see Alston, supra).

Claimant testified as follows. On December 8, 2002 he was in keeplock status and was being transferred from Upper F block to D block in Clinton. After a search by three Correction Officers of his Upper F block cell, claimant was told to wait in the cell for a Correction Officer to escort him to D block. Thereafter, claimant was handcuffed and escorted to the front of the Upper F block gallery. Claimant’s property, which consisted of at least four bags of property and a television, was being transported with him to D block by an unidentified inmate porter. Claimant personally witnessed the inmate porter with all of his property, including the television, when claimant was stopped at the front of Upper F block gallery. Immediately before being escorted from Upper F block by Correction Officer Goslin,[1] claimant heard Correction Officer Nye say “he’s not going to need that TV where he’s going.” As claimant was exiting Upper F block, claimant heard Officer Nye tell the unidentified porter to stop. Claimant asked Officer Goslin to stop as well, because he was concerned about his possessions. Officer Goslin refused, and claimant and Officer Goslin proceeded until they stopped at the North Yard door, where they waited for “no more than 30 seconds.” At that time the inmate porter arrived with all of claimant’s possessions except for his television. Claimant asked Officer Goslin to go back to Upper F block to see what happened to his television, but claimant’s request was refused. Claimant was then taken to D block, placed in a cell, and brought all of his property, except his television.

Claimant’s credible testimony establishes a prima facie case, namely that defendant exercised dominion and control over claimant’s television during claimant’s transfer to D block, inasmuch as claimant’s property was transported by an inmate porter, and the television was not returned to claimant. Thus, the burden shifts to defendant to rebut the presumption of negligence by demonstrating that the loss was due to circumstances not within its control, or by establishing that it exercised ordinary care. Defendant attempted to rebut the presumption at trial by adducing evidence of an administrative investigation that concluded that defendant was not liable for the television because it never came into defendant’s possession. Second, defendant argued that even if the television was placed in the possession of the State before claimant’s transfer and the television was not returned to claimant in D block, the State is not responsible for the acts of the inmate porter in transporting claimant’s property.

Defendant presented the testimony of Sergeant Shepler, who testified about his investigation of claimant’s administrative claim regarding the alleged loss of the television. In the course of his investigation, which was conducted more than three months after the incident, Sergeant Shepler interviewed claimant, Officer Goslin, Officer Nye and three other employees of the Department of Correctional Services who apparently had contact with claimant at or about the time of his transfer. The employee interviewees all reported that either they never saw claimant’s television, or that claimant did not complain to them of the television’s disappearance during his transfer. Sergeant Shepler concluded that the State was not liable for the loss, and he testified that he would “lean toward” the conclusions that claimant gave away the television, or it was stolen. The documents that Sergeant Shepler prepared or compiled in the course of his investigation, including memoranda written by the interviewees and documents from claimant’s subsequent administrative appeal, were received into evidence. Defendant did not produce as trial witnesses any of the Department of Correctional Services employees who were interviewed by Sergeant Shepler. Neither party offered a written inventory of claimant’s property at the time of his departure from his Upper F block cell.

Defendant offered Sergeant Shepler’s testimony in an attempt to prove that the State never came into possession of claimant’s television – and is therefore not liable for the television – because it was either given away or stolen before claimant’s transfer to D block. As a preliminary matter, the Court is not bound by the administrative determinations that the State is not liable for claimant’s lost property. In simply producing only the Department of Correctional Services employee who investigated the loss of the property and not any of the employees who were involved in the transfer of claimant from Upper F block to D block, defendant failed to adduce sufficient evidence to support defendant’s contention that the television was not placed in the possession of the State.

Second, any argument by defendant that the loss was due to circumstances beyond its control – i.e., that the State cannot be liable for property left with the inmate porter – fails on two grounds. First, defendant was in control over the events attendant to claimant’s transfer from Upper F block to D block, as the inmate porter was manifestly under the supervision and control of Department of Correctional Services employees, and the evidence at trial clearly establishes that dominion and control of claimant’s property passed from claimant to defendant during the time that he was handcuffed and being escorted between cell blocks. Second, no evidence was adduced at trial that the inmate porter was responsible for the theft of claimant’s television.

Accordingly, because defendant has not borne its burden of rebutting the presumption of negligence, the Court holds that defendant is liable for the loss of the television.

The measure of recovery when bailed property is not returned is its fair market value, i.e., the original purchase price of the property less reasonable depreciation (see Phillips v Catania, 155 AD2d 866 [4th Dept 1989]). Documents offered by claimant and received into evidence establish that he paid $80.50 for the television. Claimant testified that he purchased the television on December 2, 2002, just six days before his transfer to D block, and that the television was brand new and had suffered no wear and tear or other damage. The Court finds the fair market value of the television to be $80.00.

Claimant is therefore awarded damages in the amount of $80.00, with statutory interest from December 8, 2002 to June 8, 2003 and from July 11, 2003 to the date of this Decision, and thereafter to the date of entry of judgment. Defendant’s motion to dismiss the claim to the extent it seeks damages for pain, suffering and mental anguish is granted. Any and all other motions on which the Court may have previously reserved or which were not previously determined are hereby denied. 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 23, 2006
Albany, New York

Judge of the Court of Claims

[1]. Although claimant testified on his direct case that he did not know the name of the Correction Officer who escorted him, it was revealed on defendant’s case that claimant was escorted from Upper F block to D block by Correction Officer Goslin.