GAGNE v. THE STATE OF NEW YORK, #2006-044-005, Claim No. 109626
Claimant, an inmate, established the ownership and value of property misplaced
by defendant. Because claimant’s administrative claim and appeal were not
timely determined by prison official after 4 ½ months and inquiries by the
claimant, the Court held the administrative remedies effectively exhausted, and
refused to suspend interest under Court of Claims Act § 19 (1).
2006 NY Slip Op 52530 (U)
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CATHERINE C. SCHAEWE
STEPHEN GAGNE, pro se
HON. ELIOT SPITZER, ATTORNEY
GENERALBY: Joseph F. Romani, Assistant Attorney General
December 19, 2006
2006 NY Slip Op 52530 (U)
See also (multicaptioned
Claimant Stephen Gagne, 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 Southport Correctional Facility
(“Southport”) in December, 2003. A trial was held in this matter at
Elmira on October 25, 2006.
Claimant alleges the loss and corresponding
value of the following:
1 GE super-radio $ 43.84
stamps @ $0.37 $ 18.50
1 Smith-Corona typewriter $160.00
edda bible $ 55.00
3 legal books $304.50
2 typewriter wheels $ 22.00
packages of typewriter ribbons $ 36.00,
for a total loss of
Claimant testified at trial that on December 4, 2003, while he was
being held in keeplock at Elmira, a correction officer came to his cell with two
inmate porters. The officer ordered claimant to place his personal property in
the custody of the porters, in preparation for transfer to Southport. It is
undisputed that the property was taken from claimant at the instruction of a
correction officer, and then inventoried and packed outside of claimant's
presence in violation of Department of Correctional Services
(“DOCS”) Regulation 4917. The I-64 form prepared at Elmira by the
correction officer who inventoried and packed the items, which was presented at
trial as a court exhibit, clearly indicates that claimant was “not
present”, and claimant did not sign the form. That I-64 form includes
notations that claimant's property included two law books and four typewriter
ribbons, as well as an 'etron' radio/tape player. The I-64 form does not list a
third legal book, a bible, a typewriter, a GE super radio, typewriter print
wheels, or stamps.
Claimant testified that when he arrived at Southport,
two bags were open, and the items listed in his claim were missing. The I-64
form from Southport does indicate that two bags were open on arrival. The form
lists no legal books, no bible, no stamps, no GE super radio, no typewriter, no
typewriter print wheels, and no stamps among claimant's property. The form does
list one typewriter ribbon and an 'etron' radio.
Claimant filed an
institutional claim for his loss, which was denied on February 24, 2004. He
promptly appealed that denial, and the appeal was not decided by the date of
filing of this claim on July 19, 2004. Claimant wrote to the Southport
institutional steward on July 4, 2004, inquiring about the status of his appeal,
and advising that he was going to consider his administrative remedies exhausted
because the appeal had been unresolved for 4½ months. He correctly noted
that Directive 2733 states that appeals should be determined within 15 days
(see 7 NYCRR 1700.4 [d]). He received no response to that letter, nor to
two other letters dated August 7, 2004 inquiring about the status of the appeal.
On or about September 22, 2004, claimant finally received an offer of $25.50 for
three typewriter ribbons, which he rejected.
At trial, claimant provided
the following proof of his ownership of the missing items:
purchase receipt for three law books, a commissary receipt for 50 stamps dated
November 25, 2003, claimant's purchase receipt for a GE super radio, claimant's
purchase receipt for a typewriter, a prison permit form for claimant's GE super
radio, and a prison permit form for claimant's typewriter.
submitted an original receipt for a certified mailing and an original return
receipt as proof of timely filing of the claim.
At the close of claimant's
case, defendant's counsel made three oral motions to dismiss claimant's case:
one for failure to properly serve the Attorney General's Office by certified
mail, return receipt requested, in compliance with Court of Claims Act § 11
(a), one for claimant's failure to exhaust his administrative remedies pursuant
to Court of Claims Act § 10 (9), and one for claimant's failure to
demonstrate his ownership and/or the value of the allegedly missing items. The
Court's rulings on those motions are addressed below.
Defendant then called
Correction Officer Ames, who was the officer present at the time claimant's
personal property was received at Southport, as demonstrated by his signature on
the I-64 form. Ames testified he did not specifically recall being present when
claimant's bags were unpacked, and that he had no recollection of claimant's
bags being opened. He did state, however, that he had no doubt that they were
open, as the facility frequently received bags that were open. Ames also noted
that a number of the items on the Southport I-64 were not listed on the Elmira
I-64. Defendant rested its case at the end of Ames' brief testimony.
MOTION TO DISMISS FOR FAILURE TO SERVE THE
BY CERTIFIED MAIL, RETURN RECEIPT
In support of this motion, defendant submitted claimant's certified claim
and supplementary documentation as received by the Attorney General's Office,
including the original envelope. The envelope is stamped “Return Receipt
Requested”, and has the remains of the certified mail sticker still
attached. The envelope indicates that it was received by the Attorney General's
office on July 19, 2004. The documentation attached to the claim contains a
cover letter indicating that the claim was being sent certified mail, return
receipt requested, and also contains an affidavit of service indicating the
same. Further, the amount of postage on the envelope is the correct amount for
a letter sent certified mail, return receipt requested.
It should also be noted that the affirmative defense of improper service was
raised in defendant's answer.
The basis for defendant's motion is the lack
of the portion of the return receipt which is supposed to remain on the
envelope, and which indicates the number of the receipt, so that the envelope
can be matched with the receipt itself. However, the certified mail receipt
submitted by claimant contains that portion of the return receipt that was
supposed to remain attached to the envelope. The number on that portion of the
return receipt matches the number on the receipt itself. In comparing the
receipts with the envelope, it appears that whoever prepared the
simply did not place the return receipt sticker in the proper place so that it
would remain on the envelope. Further, the certified mail receipt returned to
claimant indicates that the Attorney General's Office received the envelope on
July 19, 2004.
The filing and service requirements contained in Court of
Claims Act §§10 and 11 are jurisdictional in nature, and must be
strictly construed (Finnerty v New York State Thruway Auth.
, 75 NY2d 721,
722-723). Claimant has the burden of establishing proper service (Boudreau
, 154 AD2d 638, 639). Mail service by any means other than
certified mail, return receipt requested, is insufficient to acquire
jurisdiction over the State, unless the State has failed to properly plead that
jurisdictional defense or raise it by motion (see
Court of Claims Act
§11[c]; Philippe v State of New York
, 248 AD2d 827).
case, claimant has satisfied the Court that the claim was properly served, based
upon consideration of the proof set forth by claimant, including the
- the envelope was stamped “Return Receipt
- the amount of postage is appropriate for an envelope
sent certified mail, return receipt requested;
- the cover letter indicates
service by certified mail, return receipt requested;
- the affidavit of
service indicates service by certified mail, return receipt requested;
provision of the return receipt and the certified mail receipt containing the
number of the return receipt;
- the certified mail receipt which indicates
the same date as the receipt of the envelope at the Attorney General's Office;
- a careful examination of the envelope by the Court, which revealed
that the return receipt sticker was improperly attached to the envelope.
Accordingly, defendant's motion to dismiss for improper service, upon which
decision was reserved at the time of trial, is hereby denied.
MOTION TO DISMISS FOR FAILURE TO EXHAUST
Defendant's next motion to dismiss is based on claimant's filing and
service of this claim prior to any resolution of his administrative appeal. As
set forth above, claimant acknowledged that he filed his claim prior to any
resolution of his administrative appeal, but points out that he sent a letter to
the appropriate prison official 4½ months after taking his appeal. That
letter indicated that claimant was going to consider his administrative remedies
exhausted. Notably, claimant received no reply to this letter.
defendant's failure to comply with the time frame set out in DOCS directive 2733
and 7 NYCRR 1700.4 (d) does not automatically mean that an inmate may
consider his administrative remedies exhausted (Paladino v State of New
York, Ct Cl, Sept. 15, 2005, Schweitzer, J., Claim No. 110824, Motion No.
70372 [UID # 2005-036-102]), there are some circumstances under which an inmate
may claim that exhaustion has occurred due to defendant's failure to address his
claim in a timely manner (see e.g. Shell v State of New York, Ct Cl, Mar.
4, 2003, Waldon, J., Claim No. 103998, Motion No. M-65424, Cross Motion No.
CM-65936) [claimant deemed to have exhausted his remedies when DOCS delayed 28
months in ruling on administrative claim].
In this instance, the Court finds
that claimant had exhausted his administrative remedies, due to the combination
of the following factors: defendant's failure to address claimant's appeal
within 4½ months, claimant's July 4, 2004 letter to defendant that claimant
was going to consider his administrative remedies exhausted, and, in particular,
defendant's failure to respond to that letter. Defendant's motion to dismiss
for failure to exhaust administrative remedies, upon which decision was reserved
at trial, is denied.
APPLICABLE LAW AND DISCUSSION
Ordinarily, a bailment is created when personal property is delivered into
the hands of another, who is then expected to return it in the same condition on
demand (Claflin v Meyer
, 75 NY 260, 262). Defendant has an obligation to
secure an inmate's personal property (Pollard v State of New York
AD2d 906). Once a claimant meets the burden 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).
Even when there is no
formal transfer of property, however, a bailment is still implied when one comes
into lawful possession of the property of another (Mack v Davidson
AD2d 1027). The determination of whether the relationship is that of bailor and
bailee turns on whether there is exclusive possession, control and dominion over
the property (Alston v State of New York
, Ct Cl, Aug. 19, 2005,
Schweitzer, J., Claim No. 108146 [UID # 2005-036-500]). When claimant's
property was removed from his possession, defendant had “exclusive
possession, control and dominion” over that property, as shown by the
packing officer's inventory of the items, the packing and transfer thereof, and
the packing officer's written notation that claimant was not present during
Any omissions are therefore chargeable to defendant (see McKinley v State of
, Ct Cl, Nov. 9, 2005, Scuccimarra, J., Claim No. 107293 [UID #
The Court is satisfied that claimant has proved by a
preponderance of the evidence that he owned the missing items of property prior
to his transfer to Southport, through his purchase receipts and prison permit
forms. Although defendant contended that claimant did not adequately prove the
value and ownership of the items, the Court finds that claimant's testimony
regarding those issues was both persuasive and uncontradicted. In fact, CO
Ames' testimony that many of the items listed as received on the Southport I-64
form were not listed on the Elmira I-64 form merely confirms claimant's
contention that the inventory taken at Elmira was inaccurate, to say the
The measure of recovery when bailed property is not produced upon
demand is the fair market value of the property, that is, the value of the
original purchase price less a reasonable rate of depreciation (Phillips v
, 155 AD2d 866 ). Receipts are the best evidence of fair
market value. In this instance, the only item over one year old was the Smith
Corona typewriter, which was purchased six years prior to its loss, and which
claimant alleged to be in good condition. Taking into account depreciation of
that item, the Court finds the fair market value of the typewriter to be $100.
The Court awards total damages to claimant in the amount of $579.84.
final issue before the Court is the award of interest on the damages. Court of
Claims Act § 19 (1) provides that “[i]f a claim which bears interest,
is not filed until more than six months after the accrual of said claim, no
interest shall be allowed between the expiration of six months from the time of
such accrual and the time of the filing of such claim.” This statute was
originally enacted as part of a major rewriting of the Court of Claims Act in
1939. One court has stated that “[t]he obvious purpose of subdivision 1
of section 19 of the Court of Claims Act is to insure some degree of promptness
in filing a claim and having the amount of 'just compensation'
adjudicated” (La Porte v State of New York
, 5 AD2d 362, 365-366
6 NY2d 1 , appeal dismissed sub nom. La Porte v New
361 US 116 ).
In 1999, the Legislature imposed the
provisions of Court of Claims Act § 10 (9), which require that an inmate
comply with the additional requirement of exhausting the personal property
claims administrative remedy established by DOCS, prior to filing a claim in the
Court of Claims. When DOCS complies with its own Directive 2733, which states
that the final appeal of such administrative remedy should be determined within
15 days (see supra,
pp 3, 6), the result of the interaction between the
two statutes is not particularly harsh. When, however, DOCS fails to act on an
appeal - in this case for 4½ months - depriving a claimant of interest due
to defendant's own tardiness is both inappropriate and unjust.
may be drawn to wrongful death cases. In such cases, Court of Claims Act
§ 19 (1) has been interpreted to mean that interest on wrongful death
damages runs from the date of death until a date six months after the
appointment of an administrator of the estate, and then from the date the claim
was filed until the date of entry of the judgment (see Dowly v State of New
, 190 Misc 16 ; Mitchell v State of New York
, 24 Misc 2d
853 , affd
14 AD2d 478 ). This is presumably because
“the existence of a qualified administrator is essential to the
maintenance of the [wrongful death] action and . . . the statutory right to
recover for wrongful death does not even arise until an administrator has been
named” (Carrick v Central Gen. Hosp.
, 51 NY2d 242, 249 n 2 ).
This interpretation thus essentially commences the running of the six-month
limitation on accrual of interest prior to filing a claim as of the date that
the claim may legally be commenced, i.e., upon appointment of the
A similar interpretation is appropriate in this instance.
The Court finds that because claimant's filing of his claim pursuant to Court of
Claims Act § 10 (9) was unduly delayed due to defendant's inaction, the
date of commencement of the six-month period within which interest may accrue
prior to filing the claim was July 4, 2004. Said date, on which claimant
announced to defendant that he was considering his administrative remedies to be
exhausted, is thus the date upon which the claim could legally be commenced.
Claimant filed this claim on July 19, 2004, well within the six-month time
Accordingly, interest on claimant's damages of $579.84 shall be
calculated from December 8, 2003, without suspension.
Any and all motions on
which the court may have previously reserved or which were not previously
determined, are hereby denied.
Finally, 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
Binghamton, New York
HON. CATHERINE C. SCHAEWE
Judge of the
Court of Claims
. Claimant testified that inmates do not prepare the certified mail and return
receipt stickers; rather those are prepared either by the prison facility or the
. Claimant's testimony regarding this procedure of taking an inmate's property
and then conducting an inventory and packing it out of the presence of the
inmate is disturbing to the Court. Such a procedure - and claimant testified
that the Elmira facility frequently handles property transfers in this manner -
clearly violates DOCS Regulation 4917. Moreover, it is conducive to the
frequent disappearance of inmates' personal property and thus to the rapid
proliferation of lost property claims against the State of New York.