Inmate bailment claim sustained after trial. Damages in the amount of $198.00
for unauthorized destruction of seized cassette tapes. Celin Umonzor alleges in
his claim that defendant’s agents negligently or intentionally destroyed
his property while he was incarcerated at Green Haven Correctional Facility
(hereafter Green Haven).
Claimant testified that after a cell search at Green Haven on March 17, 2004
personnel confiscated 22 cassette tapes because they had “screws” in
He said he received a Tier I
misbehavior report after the cell search. After a hearing, a disposition was
entered. [Exhibit 1]. When given the option of disposal of the items, he told
officials that he wanted them sent home. The understanding was that they would
be mailed home, and that is what is indicated on the hearing disposition.
]. When the time came to mail them, however, “they
couldn’t be found,” he said. He also spoke to his wife to learn
whether she had received the property; she said she had not.
Although he could not furnish any receipts, he set forth a value of $253.78 as
requested compensation for the loss. He estimated that they “cost between
$9.00, $10.00 or $15.00 each tape.” Reviewing the incomplete list provided
on the inmate claim form - only 12 tapes are listed and there is reference to an
attachment that was not included in the exhibit - reveals that claimant had
pretty much consistently indicated those prices for the cassette tapes
throughout his administrative appeal. [Exhibit A].
A contraband receipt dated March 17, 2004 confirms the seizure of 22 cassette
tapes that contained “metal screws in tapes,” and notes that they
were to be placed in the “contraband room.” [Exhibit 2]. As noted,
as part of the disposition of the disciplinary hearing held one day after the
confiscation it is clearly noted: “cassettes to be mailed home. Inmate
will write disciplinary to be put on call-out to receive tapes to mail
out.” [Exhibit 1].
On cross-examination, claimant confirmed that he had filed a facility grievance
with regard to the 22 tapes, alleging therein that the tapes were
“missing.” The grievance was denied. [Exhibit A]. The reason cited
for the denial is that “[c]laimant signed a GH Form #2068 ordering the
disposal of 22 cassette tapes.” [See id.]. The
administrative appeal was denied for the same reason. [Id.].
Claimant identified as his a signature appearing on the bottom of a photocopy
of an Authorization for Disposal of Personal Property form executed March 17,
2004 and witnessed by a correction officer on the same date. [Exhibit B]. In
the form, that is a photocopy of only marginal clarity, the option to destroy
the property - namely the 22 cassette tapes - is selected. Claimant testified
that on the original form he recalled completing, he had placed his wife’s
address, but then had to concede that this form, including the portion selecting
the destruction option, appeared to be a copy that had been in his possession
since March 2004. By way of explanation, the State offered the information that
during the disciplinary hearing there was discussion of sending the tapes home.
The Claimant maintained that, if he had been told they had been destroyed, he
would have said “Okay,” and not pursued this further. He also said
that he filled out the disbursement form to debit his inmate account for the
mailing of the property, but never received the pink copy of the form reflecting
that the account was debited the appropriate amount.
No other witnesses testified and no other evidence was submitted. At the
beginning of his trial testimony, claimant indicated that English was not his
first language, but was willing to proceed in the absence of an interpreter. The
court could not help but note that while he testified clearly, certain nuances
of the language were patently not clear to him, such that the pace of the trial
was interrupted somewhat to explain matters further. Since claimant expressed
himself comfortable with the proceeding, however, and had not advised the court
in advance of any need for an interpreter, the matter proceeded.
This claim essentially 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). 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
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 (New York Dist. Ct. 1973).
Receipts are the best evidence of fair market value, although uncontradicted
testimony concerning replacement or other indicia of value may also be
In this case, Claimant has established that certain personal property items
were appropriately seized as contraband by the New York State Department of
Correctional Services (hereafter DOCS) and surrendered to that agency’s
custody and control, and that the property was destroyed. 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 is supported in
part by the documentation provided, including, most significantly, a disposition
finding at the disciplinary hearing held only one (1) day after the initial
seizure, that the cassettes were to be mailed home. [Exhibit 1].
With laudable efficiency, the tapes had apparently already been destroyed at
the time of this hearing disposition, based upon the claimant’s own
disposition request, on the very same day as the seizure. Proof of this
authorization to destroy his property is presented in the form of a bad
photocopy of an English language facility form containing claimant’s
signature, the illegible signature of a correction officer, and stray markings
with illegible words drifting on a diagonal across the page. [See Exhibit
B]. Significantly, while claimant acknowledged that the signature on this
photocopy appeared to be his, his recall of the form he completed was different,
in that he remembered filling out his wife’s address in the section
provided for same.
Heard in context, claimant’s testimony on cross-examination to the effect
that “yes, this was the form he had in his possession since March,
2004” was clearly equivocal. He could have meant that he had received
such a form at the time he completed it, although not one that contained the
information present on Exhibit B, or that he had received this particular
photocopy. The court finds, however, that the more direct evidence was his clear
befuddlement as to why his signature appeared on a form authorizing destruction
of his property, when the form he had completed authorized its mailing.
The Court finds that Claimant’s testimony supports a finding that the
defendant should be held liable for the destruction of his property. The court
also finds that his testimony concerning the value of the property destroyed
establishes the fair market value of same and the total loss as $198.00.
Claimant indicated that the items were new when destroyed, thus the court does
not apply depreciation. See Schaffner v Pierce, supra at
Accordingly, Claimant is hereby awarded damages in the amount of $198.00 plus
statutory interest [State Finance Law §16; Civil Practice Law and Rules
§ 5004], which the Court finds presumptively reasonable, from the date of
accrual of March 17, 2004 to the date of this Decision, and thereafter to the
date of the entry of judgment pursuant to Civil Practice Law and Rules
§§ 5001 and 5002.
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.