The trial of this pro se inmate claim took place on October 9, 2007. The
claim seeks damages allegedly arising out of the negligent loss of property
during the course of claimant's transfer from Lyon Mountain Correctional
Facility to Upstate Correctional Facility on September 21, 2003.
Claimant testified that his property was packed at Lyon Mountain Correctional
Facility on September 21, 2003 and arrived at Upstate Correctional Facility on
October 6, 2003, at which time the claimant was given the opportunity to view
his property although he was not permitted to take possession due to his
commitment to the facility's special housing unit. Claimant testified that his
view of the property was limited and it was not until he was transferred to Bare
Hill Correctional Facility in December 2003 that he was able to determine the
extent of his loss
Form number I-64 dated October 6, 2003 was admitted into evidence at trial as
part of defendant's Exhibit B. The I-64 form reflects the property which was
packed for shipment at Lyon Mountain Correctional Facility on September 21, 2003
and is signed by the two correction officers who "checked" the property.
Although the claimant refused to sign the form thereby acknowledging the
property which was packed for shipment, the I-64 form reflects that all of the
property packed at Lyon Mountain Correctional Facility was received at Upstate
Correctional Facility. Claimant acknowledged this fact by signing the form on
October 6, 2003.
Of the property claimant alleges is missing only peanut butter, jelly, thermal
underwear, shirts, stamps and protein powder are reflected on the form.
The State as a bailee of an inmate's personal property owes a common-law duty
to secure the property in its possession (Pollard v State of New York,
173 AD2d 906 ; see also 7 NYCRR part 1700). A rebuttable
presumption of negligence arises where it is established that the property was
delivered to the defendant with the understanding that it would be returned, and
that the defendant failed to return the property or returned it in a damaged
condition (Ramirez v City of White Plains, 35 AD3d 698 ; Feuer
Hide & Skin Corp. v Kilmer, 81 AD2d 948 ; Weinberg v D-M Rest.
Corp., 60 AD2d 550 ; see also Claflin v Meyer, 75 NY 260
). Thereafter the burden of coming forward with evidence that the loss
or destruction of the property was not its fault is upon the defendant (Feuer
Hide & Skin Corp. v Kilmer, supra; Board of Educ. of
Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049
; Weinberg v D-M Rest. Corp., supra ).
In the instant matter, claimant failed to establish that he delivered many of
the allegedly missing items to correction employees at Lyon Mountain
Correctional Facility on September 21, 2003. Receipt of the items which were
included on the I-64 form for shipment from Lyon Mountain, was acknowledged by
the claimant at Upstate Correctional Facility on October 6,
. The proof at trial is insufficient to
meet the claimant's burden of establishing that the defendant failed to return
any of the claimant's property of which it took possession as bailee.
Accordingly, based on the foregoing, the claim is dismissed.
Let judgment be entered accordingly.