New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2007-030-035, Claim No. 109257


Synopsis


Inmate bailment claim dismissed. Claimant did not establish his own possession of the property, delivery, negligence or value.

Case Information

UID:
2007-030-035
Claimant(s):
AKEEM SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109257
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
AKEEM SMITH
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
August 16, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Akeem Smith alleges in his claim that defendant’s agents negligently lost or destroyed his property while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven). Trial of the matter was held on May 11, 2007.


Claimant testified that on or about December 30, 2003 he secured his cell at Green Haven prior to going to the noon meal. Thereafter, “an incident occurred with an officer”[1] and he was escorted to the special housing unit (SHU). About “three or four days after that, . . . [he] I-64'd [his] property at SHU” and discovered items were missing.

He found the following items were missing: an Etron Radio C-35, which he valued at $39.98 “including shipping and handling”; three (3) bath towels in good condition valued at $10.00 each ($30.00); five (5) Foot Locker t-shirts valued at $15.00 each ($75.00); one (1) floor throw rug valued at $10.00; and three (3) cassette tapes valued at $15.00 each ($45.00) for a total loss of $199.98. He said he had package room receipts which he did not have with him at trial that would show that the items had been “received over the course of time.”

Claimant filed a facility claim, that was denied. [Exhibit 1]. An I-64 inventory form, completed on January 1, 2004 only after he was in SHU, was also submitted. [Exhibit 2]. The facility claim was “disapproved” because he filed the claim four weeks after the alleged loss, rather than within five days. [See Exhibit 1]. The superintendent’s appeal determination indicates that the claim is “disapproved” because “all property in cell was transported to Special Housing.” [Id.].

On cross-examination claimant agreed that when the I-64 form was completed, claimant acknowledged that the items listed thereon represent property he had in his possession when he was in SHU on January 1, 2004. [see Exhibit 2]. He confirmed that one item listed is a GE Super radio, and that at Green Haven an inmate is only allowed to possess one radio. Mr. Smith said, however, that the GE Super radio listed was not his radio; information he conveyed to the sergeant at the time. While he would not say that it was his contention that someone snuck in his cell, took his radio, and substituted another, he could not explain the presence of the GE Super radio. He restated that the “last time” he saw his cell was before the noon meal on December 30, 2003. He agreed that all the other property he signed for on the I-64 form was in his possession when he was in SHU two days later, including the 11 t-shirts, the “personal rug”, the two towels and some cassettes listed thereon.

He did not have a facility permit for a radio, and agreed that it was his understanding that on a permit, a serial number for the radio would be inscribed. If a radio were found in his possession that he did not have a permit for, he would be given a contraband receipt. Claimant had to concede he did not have a contraband receipt for the GE Super Radio. Indeed he admitted he still has the GE Super Radio in his possession, but would not say he had a permit for it, and agreed he was saying that he therefore possessed contraband.

Claimant had no receipts to present in court during the trial. Additionally, despite initially asserting that “that was why [he] needed the package room papers” he claimed to have left behind, Mr. Smith ultimately admitted that he could not say whether he had receipts in those papers.

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 (New York 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 not established all the elements of a bailment claim. While the Court is satisfied that Claimant exhausted his administrative remedies [see Court of Claims Act §10(9); 7 NYCRR Part 1700], he did not establish his initial possession of the property on December 30, 2003 when the loss he asserts first occurred. Such possession is a necessary element to establish a bailment cause of action. In addition to not establishing his own possession of the property, he did not establish delivery, negligence or value.

Accordingly, and after carefully considering the evidence presented, including the testimony of Claimant and observing his demeanor as he did so, the Court finds claimant has failed to establish a prima facie case, and Claim number 109257 is in all respects dismissed.

Let judgment be entered accordingly.


August 16, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




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