Joe Randolph alleges in his claim that defendant’s agents negligently
destroyed his property after a cell search while he was an inmate at Green Haven
Correctional Facility (hereafter Green Haven). Trial of the matter was held on
May 11, 2007.
Mr. Randolph testified essentially as set forth in his claim, and submitted his
entire claim and its attached exhibits in evidence. [Exhibit 1]. On July 22,
2003, he said, during a cell search, his “model 88 table radio was
He testified that he
used the word “illegally” because he had a permit for the radio, it
was on his package list, and there was no need for the officer to take it.
Despite this documentation the radio was taken. Thereafter, claimant filed a
grievance, pursued his facility claim, and wrote to various officials of his
He found that “all the people [he] wrote to told him something
different.” Although “the dep[uty] commissioner told [him]
ultimately, that [claimant] was right, [the radio] should not have been
taken,” in the “four month (sic) interim, they had made a
regulation that this type of radio was not to be allowed in the facility.”
Claimant said, however, he was given thirty (30) days to have the radio and then
had to dispose of it thereafter. In his view, this was pointless, since he
would need to send it out in thirty (30) days in any event, thus he decided to
send it home right away, and so instructed the package room personnel. Despite
his decision and instructions, the “radio never made its
Thereafter, he “dropped a grievance,” concerning the loss. One
officer from the package room said she had personally mailed claimant’s
radio out. After an investigation, it was learned that the radio was not sent
out because claimant did not have money in his account. Because there was no
money in claimant’s inmate account - a fact he was not aware of -
personnel destroyed the radio. When he wrote to the superintendent this time,
the response was the same: because there was no money in claimant’s
account, “it was legal for them to destroy it.”
Claimant then argued that a memorandum showing facility policy provides that a
facility is not supposed to destroy personal property when there are
insufficient funds to mail it out. [Exhibit 2]. There is no indication, however,
that this facility memorandum dated October 20, 1998 was the controlling
directive at the time. [Id.]. Additionally, the memorandum appears
to refer to property arriving in the package room from outside the facility.
Finally, claimant testified that the value of the radio was $150.00 plus
shipping and handling, and furnished a receipt dated November 5, 2001. [Exhibit
3]. The receipt is issued to a Patricia Bettis. [Id.]. Claimant
explained that Ms. Bettis is his mother, who had purchased the radio for him. It
was, however, in his possession from November 2001 until its seizure in July
2003. He was apparently given an undated contraband receipt at the time of
it’s seizure. [Exhibit 1].
At the close of claimant’s case, the Assistant Attorney General moved to
dismiss the claim after Mr. Randolph inartfully stated that his “whole
purpose in bringing this claim was to get the radio replaced and, upon
replacement, to send it back to his parents.” Mr. Randolph also restated
that he would take any money received and buy the radio again. The Assistant
Attorney General argued - correctly - that this court cannot give equitable
relief under the circumstances presented. Court of Claims Act §9. The
motion is nonetheless denied since, taken in context, the claimant’s
comments merely gave an explanation of his motivation, and were not intended to
confine him to seeking equitable relief.
In a letter from the State Deputy Commissioner dated October 1, 2003, it is
confirmed that while such radios had been determined to be prohibited, claimant
was advised on September 26, 2003 of the option to have his radio returned to
him until the grace period for possession ended on October 21, 2003, or to
dispose of it in accordance with departmental policy. [See Exhibit 1].
It is acknowledged in the same correspondence that claimant’s radio was
not authorized for seizure before the grace period ended, and it is also
acknowledged that claimant had elected to mail the radio. [Ibid.].
Thereafter, the documents submitted confirm that the package room clerk first
said that the radio was mailed out. Later - and this is confirmed by the inmate
grievance resolution committee’s finding of February 26, 2004 - the radio
was revealed to have been destroyed because claimant had insufficient funds in
his account for mailing the property. [Exhibit 1]. No notice of this
insufficiency, or of the facility’s determination to destroy the property,
was given to the claimant. [Ibid.]. Indeed, in the denial of his
facility claim dated December 30, 2003 the hearing officer
“disapproved” the claim, and wrote “the property (radio) was
disposed of per Cpt. Keyser (ADSS) on 11/15/03.” [Exhibit 1]. In the
Superintendent’s appeal section of the facility claim, dated March 12,
2004, the claim is again “disapproved”, and in the
“comments” section of the form it is written, “Inmate had
insufficient funds to mail out radio.” [Ibid.].
No other witnesses testified and no other evidence was submitted.
This claim is essentially one alleging negligence by the alleged bailee in a
bailment allegedly created between Defendant and Claimant by delivery - or in
this case seizure - of Claimant’s personal property into the custody of
Defendant’s employees. See generally Claflin v Meyer, 75 NY
260 (1878). Having taken possession, the State then has a duty generally to
secure an inmate’s personal property. Foy v State of New York, 182
AD2d 670, 671 (2d Dept 1992), 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 Co. Dist. Ct. 1973).
Receipts are the best evidence of fair market value, although uncontradicted
testimony concerning replacement value may also be acceptable.
After carefully considering the evidence presented, including the testimony of
Claimant and observing his demeanor as he did so, the Court finds him a credible
witness, whose version of the events was uncontradicted, and is supported by
documentary submissions. The court is satisfied that he has established his
claim, and his right to compensation, by a preponderance of the credible
This Claimant has shown that he was in possession of his radio until its
confiscation. After such “delivery”, the presumption of negligence
upon the bailee’s failure to return the property arises, and such
presumption has not been rebutted. Indeed, all the indications in the documents
submitted are that what claimant testified to is true: his radio was seized
prematurely, he was told that the radio was mailed out per his instructions, and
that he thereafter filed a grievance when the property did not arrive where it
was supposed to go based upon that false representation; he was told that it was
destroyed; and he was given what can only be viewed as an “after the
fact” type explanation that he did not have sufficient funds in his
account to mail the property - information he was not given until it was too
late - since such “explanation” was provided after he was told his
property was destroyed.
Generally, when an inmate is found in possession of “surplus or
disallowed property”, he is given the option of having the property
destroyed, donated, picked up by a visitor within a certain time frame or mailed
to another location at his expense.
the procedure described in facility regulations and also set forth in one of the
New York State Department of Correctional Services [hereinafter DOCS] Directives
available to the public at its website.
Indeed, facilities generally provide the inmate with Form 2068, entitled
“Authorization for Disposal of Personal Property,” that gives the
inmate the options for disposal. This does not appear to have occurred in this
Claimant has established that the fair market value of the radio, inclusive of
depreciation fairly applied since the radio was more than one (1) year old when
seized [see Schaffner v Pierce, supra at 24], as $135.00.
Accordingly, Claimant is hereby awarded damages in the amount of $135.00 plus
appropriate interest from the date of accrual of July 22, 2003 to January 22,
2004, and then from June 10, 2004 to the date of this decision, and thereafter
to the date of entry of judgment.
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.