Claimant Howard M. Owens, an inmate appearing pro se, alleges that defendant
State of New York (“defendant”) negligently lost certain personal
property belonging to him when he was transferred from Elmira Correctional
Facility (“Elmira”) to Wende Correctional Facility
(“Wende”) in February 2003. A trial was held in this matter on
October 11, 2006 at Elmira.
At trial, claimant testified that on February 17, 2003, he was told to bring
his personal property to a packing officer, as he was being transferred to
Wende. He brought his belongings to be packed, and filled out an I-64 form. He
testified, persuasively, that the packing officer would not pack his 12-inch
black and white television with the other items, but rather that the packing
officer indicated that the television would have to be shipped separately, and
that a separate disbursement form would have to be completed to transfer money
from his inmate account for the cost of mailing. Claimant testified that the
packing officer told him the television would be boxed up and that claimant
would receive a copy of the disbursement form when the television was received
by the business office. Claimant further testified that the packing officer
told him that the television could not be listed on the I-64 form, because it
was not being transferred with his other personal items.
In addition to the missing television, claimant also asserts that a plastic
storage unit and earphones were damaged during the transit, and further alleges
the loss of a package of tobacco and one pair of sweatpants. On
cross-examination, claimant admitted that the tobacco and sweatpants were taken
from him when he was about to board the bus for transfer to Wende, and stated
that these items were thrown in the garbage in his presence. When asked whether
the tobacco was taken because it was contraband, claimant testified that he had
been advised by the packing officer that he could take tobacco on the bus, as
long as the package was unopened. Claimant further stated that he believed
that the applicable prison directive allowed tobacco on the bus, again as long
as it was unopened. When asked whether the sweatpants had been taken because
prison directives provided that only state-issued clothing was permitted on the
bus, claimant indicated he was not aware of such a directive at that time.
Claimant also testified that the packing officer told him to list the sweatpants
on the I-64 form even though he would be wearing them on the bus.
When claimant arrived at Wende, the Elmira I-64 form was missing, and his two
bags were open with the security seals broken.
Claimant was required to fill out a new I-64 form at Wende in order to receive
The Wende I-64 form notes
that the storage container was broken, and also indicates receipt of only one
pair of sweatpants, rather than the two pairs indicated on the Elmira I-64 form.
Claimant also testified that the first time he tried to use the earphones, he
discovered that they did not work properly.
On cross-examination, the Assistant Attorney General (“AAG”) showed
claimant the investigative memorandum prepared by Elmira
That memorandum stated that
claimant did not have a television at the time of pack-up, and stated
“[i]t is our conclusion” that claimant gave the television away when
he learned he would be transferred. The AAG asked claimant whether he had given
his television to another inmate. Claimant strenuously denied giving the
television away. The AAG then asked claimant whether he had even possessed a
permit for the television. Claimant responded by providing a copy of his
“Special Commissary Purchase Request” for the
When the AAG told claimant this
was not a special permit, claimant indicated he was not aware of any other form,
and that this was the form he produced when requested by prison officials.
Defendant introduced only one exhibit at trial, which was a certified record
from Wende of documents pertaining to this claim. Defendant did not introduce
into evidence any of the directives referenced during claimant's
cross-examination, nor did defendant advise the Court of the appropriate
identifying numbers of these directives. Defendant called no witnesses, and
made a motion to dismiss at the close of claimant's case, contending that
claimant had not proved that a bailment had occurred with regard to the
television. Defendant conceded the damage to the storage unit, and advised the
Court that it had no position with regard to the headphones.
A review of the documentation attached to claimant's claim indicates that he
pursued and exhausted all appropriate administrative remedies (see Court
of Claims Act § 10 (9); 7 NYCRR Part 1700).
Claimant presented as a credible witness, whose testimony was essentially
uncontradicted. Through his testimony and documentation, claimant established a
prima facie case of the existence of a bailment to the Court's satisfaction
through his testimony and documentation. Once a claimant meets the burden in a
bailment case of proving that his property was deposited with the defendant and
that the latter failed to return it, the burden shifts to the defendant to
overcome the presumption of its negligence (Weinberg v D-M Rest. Corp.,
60 AD2d 550). While any directives pertaining to the “contraband”
tobacco or wearing of state-issued clothing on the bus might have been
controlling regarding the taking of the tobacco and sweatpants, defendant
introduced no such evidence of any directives. Claimant's uncontroverted
testimony was that he had been advised by prison officials that he would be
take/wear those items on the bus. With regard to the television and the lack of
any notation regarding it on the Elmira I-64 form, the Court does not view the
form as dispositive. The special commissary receipt establishes that the
television was in claimant’s possession at Elmira. Under the circumstances
established by claimant's credible testimony, the packing officer advised him
that the television would be shipped separately from his other personal property
and thus would not and could not be noted on either I-64 form. Given the lack of
any evidence to the contrary, the Court accepts claimant's testimony as having
met the required burden of proof. Defendant did nothing to controvert the
presumption of liability established by claimant's testimony and
Claimant introduced into evidence receipts for all the items he claimed were
missing or broken.
Each item was less than
one year old and accordingly, the issue of depreciation need not be considered.
The receipts establish claimant's total loss at
Therefore, after due deliberation,
the Court finds for claimant in the amount of $94.89, plus the appropriate
statutory interest from March 2, 2003.
Any and all motions on which the court may have previously reserved, or which
were not previously determined, are hereby denied.