New York State Court of Claims

New York State Court of Claims

RUSH v. THE STATE OF NEW YORK, #2007-030-019, Claim No. 110361


Inmate’s bailment claim sustained after trial. $400.00 damages. Omissions and defects in I-64 inventory forms chargeable to the State since what was noted thereon in State’s exclusive control

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:
Third-party defendant’s attorney:

Signature date:
June 18, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Basheen Rush alleges in his claim that defendant’s agents negligently or intentionally lost his personal property while he was in the custody of the New York State Department of Correctional Services (hereafter DOCS) at various correctional facilities. Trial of the matter was held at Sing Sing Correctional Facility on April 13, 2007.

Mr. Rush testified that on March 26, 2004 he “got confined in the Green Haven Correctional Facility and got sent to [the special housing unit] SHU.”[1] The property was “processed on April 2, 2004 by Correction Officer Huttel - nine (9) bags - and all the property was moved into the SHU.” Once property “is logged in at SHU” Mr. Rush explained, “the inmate has no further contact with it. The only time you can try to get property out when you are in SHU is by writing a letter to the Deputy Superintendent of Security requesting removal of legal work, if you forgot to take your legal work out of the bag before it was inventoried and closed up.” In his case, he “witnessed” the property being placed in the nine (9) bags by Correction Officer Huttel, who completed the I-64 inventory form [see Exhibit 2], and then “sealed the bags and placed them behind . . . [claimant’s] cell.”

Subsequently, claimant was to be transferred to Southport Correctional Facility (Southport) on October 31, 2004. He said the property that was kept behind his cell was never brought forward to be “re-I-64-ed”, a standard practice. “Officer Marnucci came and processed some small items in . . . [his] cell, such as soap and religious items.”

When claimant got to Southport he said he received “four (4) out of the nine (9) [bags of property]: the amount allowed on bus - four (4) plus one typewriter or musical instrument.”

Personnel “opened up the four (4) bags in the draft processing room on November 3, 2004.” Mr. Rush immediately saw that there was property missing, and so advised the officer recording the receipt. Mr. Rush also explained that they are only allowed to visually inspect the property bags and because claimant was being sent to SHU within Southport, “the set up, where they have no access to the property”, was the same. He was told that he “still had some bags coming, and responded that . . . [he] knew that some mail-out bags were coming, but that the I-64 with the serial numbers from Huttel showed that there should be a certain amount of shirts in the bag, for example, but that they were not that many now.” (sic) When the officer asked “how do you know” claimant responded by saying that he had watched Huttel put them in. The correction officer said “just wait for the next bags.”

When additional bags came in by mail on November 24, 2004, claimant was brought back down to the Southport draft area. Only three (3) bags showed up, when there “should have been five (5) bags.” The serial numbers for the three (3) bags are shown conforming with three (3) numbers on Officer Huttel’s form, yet property was still missing. Claimant immediately told correction officers again that property was still missing .

On November 28, 2004, one (1) more bag, with a serial number matching Correction Officer Huttel’s form, arrived. This bag had letters, cards and photos, and was processed in Southport by Officer Meeks.

Claimant testified: “I had nine (9) bags from Green Haven. I came with four (4) on the bus and three (3) were shipped. Another bag came after that on November 28, 2004. [As it stands,] one (1) bag is missing altogether, and there was property missing out of the other bags that came, too.”

When Claimant transferred out of Southport to Attica Correctional Facility he was then able to determine at an even later date all that was missing.

With regard to any receipts, Claimant said he always “keeps” his receipts “nice and neat” as property comes in, but they would have been in the property bags. When he attempted to obtain package room receipts/lists from Green Haven to further substantiate the existence of the property, he was told that his package room records were moved to Attica; when he wrote to Attica, they said they had nothing with regard to “old records.” Thus his assertion of value is based upon replacement costs.

Claimant did not testify as to whether he pursued his personal property claims remedy, but his written claim - a sworn document - indicates that he did so, but that it was denied. [Claim Number 110361, ¶ 9].

The claim filed herein lists as missing specific clothing items, books, magazines, writing pads, pens, eyeglasses, towels, cigarettes, a butane lighter, tobacco, sneakers, cassette tapes, a watch, a Walkman tape player, a typewriter and a winter jacket. [See Exhibit 1 and Claim Number 110361, pages 3 and 4].

The initial I-64 inventory form completed by Correction Officer Huttel in claimant’s presence on April 2, 2004 lists serial numbers for nine bags in the body of the form, of which one serial number appears in a subsequent I-64 form completed on November 3, 2004 at Southport. [Exhibit 2]. The April 2, 2004 form does not contain any numbers in the topmost portion of the form in a “baggage” section. [See ibid.]. Three entirely different serial numbers appear on the November 3, 2004 form, not utilized on the April 2, 2004 form, and the amount of property listed on the November 3, 2004 form is reduced. [See ibid.]. Additionally, the November 3, 2004 form contains two other numbers in a “baggage” section at the top that never appear again anywhere. [See ibid.]. An I-64 form completed at Southport on November 24, 2004, lists three serial numbers that do appear on the original April 2, 2004 I-64 form in the bottom section, and three new numbers in the top “baggage” and “typewriter” sections. [See ibid.]. The last I-64 form submitted, dated November 28, 2004 at Southport, contains one number in the topmost “baggage” section of the form, and lists as property “cards”, “1 photos” and “papers.” [See ibid.].

Claimant testified that these were the only forms completed to record the passage of his property from one venue to the next, as it came to rest, finally, in Attica, where he was first able to completely ascertain what was missing.

The only cross-examination of claimant was a question as to whether he felt he had “adequately presented his case.” 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); Ahlers v State of New York, (Claim No. 82543, Corbett, P.J., December 23, 1991). 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 (Nassau County 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 DOCS custody and control, and that some property was lost while in their custody. The Court is satisfied that Claimant exhausted his administrative remedies. See Court of Claims Act §10(9); 7 NYCRR Part 1700. The Claimant presented as a credible witness, whose testimony was uncontradicted.

Although the I-64 inventory forms do not generally - and certainly do not in this case -sufficiently describe what was actually packed up in the first instance, or what was ultimately received, since what was noted on the form was within the exclusive control of the State’s agents, any omissions are chargeable to the Defendant. Access to the property once it is packed up is completely circumscribed, as described by Claimant in his unchallenged testimony, and Claimant’s only opportunity to view the property while a resident of SHU is just that: a visual inspection. Moreover, Claimant sufficiently explained why the form was signed by him on the receiving end, and that his protests were immediate.

The Court has compared the documentary exhibits presented as measured against assertions made in Claimant’s uncontradicted testimony and in his written claim and finds that he has established the loss of a winter jacket, pajamas, shoes, shorts, shirts, underwear, thermal underwear, books, writing paper, pens, eyeglasses, a towel, some toiletries and cassette tapes. Claimant’s testimony and sworn statements in his claim concerning the value of the property lost, together with depreciation where applicable, establish the total loss as $400.00. Since Claimant did not indicate the age of the items, the Court assumes they 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 $400.00 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 November 28, 2004 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. To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).

Let Judgment be entered accordingly.

June 18, 2007
White Plains, New York

Judge of the Court of Claims

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