New York State Court of Claims

New York State Court of Claims

ZARVELA v. THE STATE OF NEW YORK, #2007-030-045, Claim No. 112631


Pro se inmate establish property loss in bailment claim. Damages $250.00. Defendant failed to establish that claimant’s administrative claim was untimely.

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:
November 29, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Victor Zarvela alleges in his claim that defendant’s agents at Sing Sing or Orleans Correctional Facilities negligently lost his property while he was incarcerated in the Special Housing Unit [SHU] of each in 2005 and 2006. Trial of the matter was held on October 19, 2007.

On that date, defendant made an oral motion to dismiss the claim based on a lack of jurisdiction, in that the Attorney General’s Office was not served with the claim until August 11, 2006, more than 120 days after the claim’s alleged accrual on April 7, 2006, when the New York State Department of Correctional Services [DOCS] disapproved the claim, and Mr. Zarvela thus exhausted his administrative remedies.[1] See Court of Claims Act §10(9). In its answer, served on September 20, 2006, the defendant included as a Fourth affirmative defense this alleged failure to timely serve the claim as required, and the resulting lack of jurisdiction. Court of Claims Act §11(c).

Additionally, defendant made an oral motion to dismiss the claim based upon its Fifth affirmative defense, that claimant failed to timely file the claim form in the correctional facility to trigger commencement of his two-tier review inmate personal property claim remedy [see 7 NYCRR Part 1700]. Defendant argued that although claimant had knowledge of the loss on August 11, 2005, he did not file the facility claim form until February 1, 2006, well past five (5) days after “discovery of the loss,” the period required by departmental directive 2733 and DOCS regulations. [See 7 NYCRR §1700.4(a)].

In response, claimant explained that he had been transferred from the Sing Sing Special Housing Unit [SHU] directly to the Orleans Correctional Facility SHU, and only received the I-64 inventory form addressing property received at Orleans on January 30, 2006. Thereafter he filed his facility claim; however it was denied as untimely at the first tier of review, and again denied as untimely in the final appeal decision dated April 7, 2006.

Claimant testified[2] that on June 30, 2005 his property was packed up at Sing Sing for his transfer to SHU within the facility, and later to the SHU at Orleans Correctional Facility. At Orleans, on or about August 11, 2005, he discovered that one of the five bags he had seen packed before moving from Sing Sing was missing. He asked the officer to give him the I-64 form, but was not given the form until “five or six months had passed.”[3] This is confirmed in a memorandum dated January 18, 2006, from the inmate records coordinator at Orleans Correctional Facility, and attached to the claim filed herein, in which she writes that the office had not received copies of claimant’s I-64 forms, and directing claimant to contact his SHU sergeant for the inmate copy. [Claim Number 112631]. Another memorandum from Captain Hollander to claimant attached to the claim, dated January 30, 2006, further confirms claimant’s testimony, and recites: “No one can find your I-64 from when you arrived at Orleans. Your property will be re-I64'd and you will get a copy. If you discover anything missing, and you can prove ownership, you may file a claim.” [See ibid.].

Mr. Zarvela testified that he finally received a copy of the I-64 inventory form on January 30, 2006. It was then that he realized what he had lost, and filed an inmate claim form as he had been told to do. As noted above, the first tier decision dismissed the facility claim as untimely when filed on February 2, 2006.

Reviewing the facility claim form which is also attached to the claim filed herein, the court notes that the claimant dated the form February 1, 2006 and that personnel at Orleans acknowledge it as received on February 2, 2006, and as “sent out for investigation” on February 3, 2006. [Claim Number 112631]. The first level decision - indicating that his claim was untimely - was rendered February 7, 2006. Claimant pursued an appeal thereafter, and appears to have written to the superintendent at least once in an attempt to obtain a decision on the appeal. The determination was made on April 7, 2006.

Claimant submitted copies of two I-64 inventory forms. [Exhibit 2]. The first is dated June 30, 2005, is signed only by the claimant, and notes five (5) tag numbers - presumably for five (5) bags - but does not otherwise indicate that five bags of property were filled at Sing Sing. [Ibid.]. The second I-64 form signed by claimant on January 30, 2006 appears to have been completed at Orleans, indicates that four (4) bags were being inventoried, and is signed by both the claimant and a correction officer. [Ibid.].

Claimant also submitted a disbursement request form representing his payment of the filing fee in this court, a list of the items claimed on his denied facility claim, some package room records, some inmate account records, and two receipts for, he stated, the cost of lost boots and sneakers. [See Exhibit 1]. Finally, he submitted a facility permit from Sing Sing for a pair of hobby scissors noted as missing in his facility claim. [Exhibit 3]. Reimbursement in the total amount of $309.43 for the items listed on the facility claim as missing is sought in the claim before this court, less the cost of one seasoning package worth $8.15 [Goya Sazon, 10 packets at $.85 each] he erroneously asked for twice.

Asked why there was so much food listed as missing, he explained that he is a diabetic, and needs to prepare most of his food himself.

On cross-examination, claimant agreed that he was packed up on June 30, 2005 at Sing Sing to serve a disciplinary sentence in the Sing Sing SHU. He did not pack up his own property, nor did he view the packing up. He spent forty-five (45) days in the Sing Sing SHU. He said he viewed the property packed up at Sing Sing “on the table, ” and was handcuffed throughout the process. He said he signed the I-64 but said that he essentially “signed for the 5 bags,” not what was inside them. The only thing he could say that was missing was a hot pot “from what . . . [he] could see on the table,” and he observed its absence only because he used the hot pot to prepare almost all of his meals. [Exhibit 2]. He was not allowed to “touch” his property, “just look at it generally.” He “thought the officers packing were new, because they did not seem to know what they were doing.” He was never given his property as he moved from one SHU to the next, and was only given his state-issued greens and underwear.

Shown the I-64 form completed at Sing Sing SHU, claimant agreed that there were no sneakers or boots listed. Claimant again pointed out, however, that he did not fill out the form. He agreed, when asked, that there is no listing of Vitamin C; detergent; scissors; stamps; thermo; cigarettes or cigars, on the I-64 although these items are claimed on the inmate claim form he filed, that forms the list for the items claimed lost before this court. He testified that he “put down what [he] lost.” He “does not know what they put down on the June 30, 2005 form. All [he] knows is that there were five bags on the table, that [he] had received the boots on June 26th, 2005 and was planning on wearing them for the visitor’s room,” but before he could, the disciplinary infraction “came down.” He signed the I-64 form because of the “pressure put on to get it done fast.” Claimant agreed that some property was not on the form, but he would not agree that he therefore did not own or possess the property when he left Sing Sing on June 30, 2005. Claimant pointed out - in order to demonstrate the inaccuracy of the inventory - that the Sing Sing form does not mention cassettes, for example, yet the Orleans form has 23 cassettes listed as received. He agreed that more canned items are listed on his claim form than are listed on the I-64, but again repeated that he did not control what was written down.

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). 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 value may also be acceptable.

Court of Claims Act §10(9) requires an inmate seeking to recover damages for lost personal property to file and serve a claim within 120 days after the date on which the inmate exhausted his or her administrative remedy. Notably, such accrual date is measured from the inmate’s receipt of the administrative decision, in that he is not “aggrieved” until he actually receives the determination. See Blanche v State of New York, 17 AD3d 1069,1071 (4th Dept 2005). The only information before the court is that the decision itself was rendered on April 7, 2006, showing that claimant had established the exhaustion of administrative remedies condition precedent to suit imposed by Court of Claims Act §10(9).

Significantly, although the affirmative defense of untimeliness is properly raised in the answer, defendant has not met its burden of proof of establishing same, because the defendant has not shown when the decision was received in order to demonstrate that it was untimely. Although a date of accrual of April 7, 2006 is alleged in the claim in the spot provided on the form, it is obviously not controlling, and presents only the date the final administrative decision was rendered. It is noted that the claimant was not asked when he received the decision.

Indeed what colloquy there was on the topic of timing, in mixed Spanish and English, surrounded the affidavit of service of the claim upon the Attorney General’s Office, not when claimant received notice of the final administrative determination which would then trigger the count. There was also some colloquy regarding how long - namely seven (7) days from the date of the decision - it took to receive the first tier review in February 2006; correspondence that would presumably have been moved within the prison. Thus, although the final determination is dated April 7, 2006 - a Friday - it hardly concludes that claimant received same on that date. April 11, 2006 was a Tuesday. The claim was served on the defendant on August 11, 2006, and an answer was served on September 22, 2006. Defendant has not established its fourth affirmative defense that the claim served and filed herein was untimely.

With regard to its related fifth affirmative defense concerning the untimeliness of the filing of the facility claim, defendant has not established such either, in the face of the delays all attributable to its own agents.[4] Defendant failed to properly inventory the property with claimant from one facility to the next, and then failed to provide whatever inventory form there was until six (6) months after claimant first noticed - in August 2005 - that it was probable that there was property missing given the apparent reduction of his bags from five (5) to four (4). Once the inventory form was provided to him, on or about January 30, 2006, claimant almost immediately filed a facility claim, as he had been instructed to do by the defendant’s agents all along as he attempted to obtain the inventory forms in the first place. Then, at the first tier of review, the claim was denied - without any substantive review - as untimely, because it was not filed within five (5) days of the loss in August 2005 in accordance with departmental directives, mirrored in DOCS regulations. [See 7 NYCRR §1700.4]. Two (2) months later, the final determination was rendered, again premised only on untimeliness. Based on the foregoing, evidencing the defendant’s failure to follow its own regulations by, for example, failing to “interpret” the time frame for filing “with some flexibility,”[5] the fifth affirmative defense is not made out either.

Turning to the substantive aspects of the bailment claim, claimant was able to establish, to some degree, his own possession of the property, delivery, negligence and value as required.

The claim filed herein lists as missing many specific food items, sneakers, and dark brown shoes - that he testified were boots - cigarettes, cigars, Tide detergent, scissors, stamps, and “thermo plastic”. [See Exhibit 1 and Claim Number 112631]. Some package room receipts correlate with duplicate receipts obtained from the retailer, and are confirmed by his testimony, showing that he purchased a pair of sneakers in 2004, and boots in June 2005, for $49.95 and $49.95 respectively. [Exhibit 1]. Similarly, the court credits his assertion concerning his possession of some of the food commissary items purchased within days of his removal from his cell, and reviewed the inmate account forms showing subtractions for the purchase of same, but, because fungible items are involved, does not find the deductions for commissary purchases made in April and May 2005, and July 2005 as sufficient to show that items were in his possession prior to his seizure in June 2005. [See ibid.]. Indeed, the July 2005 deduction is after the date of delivery of claimant’s property into defendant’s custody in any event. One package room receipt shows delivery of a two-quart thermos in August 2001, and another shows delivery of scissors in August 2004. [See ibid.]. Claimant testified that the scissors were the ones referred to in the Sing Sing facility permit he submitted. [Exhibit 3].

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. What is noted on the form is within the exclusive control of the State’s agents, thus 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 either end, and that his protests as well as his attempts to pursue administrative review of his loss was as immediate as the circumstances allowed.

Accordingly, 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 presumption of negligence is not rebutted. Claimant presented as a credible witness, whose testimony was uncontradicted. 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 loss of some grocery items, and sneakers, boots, scissors and a thermos. 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 $250.00. Accordingly, Claimant is hereby awarded damages in the amount of $250.00 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 August 11, 2005 to the date of this Decision, and thereafter to the date of the entry of judgment pursuant to §§ 5001 and 5002 of the 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.

November 29, 2007
White Plains, New York

Judge of the Court of Claims

[1]. Claimant forwarded to the court’s attention a photocopy of the final decision dated April 7, 2006, in which the deputy superintendent affirmed the finding that the claim was untimely, saying “Per directive 2733 claim must be filed within 5 days of the loss. You admit to viewing your property on 8/11/05”. Portions of the facility claim were attached to the claim filed in this court, as well as admitted in evidence. [Exhibit 1].
[2]. Claimant testified both in English and in Spanish, using an interpreter as needed.
[3]. Quotations are to trial notes or audio recordings unless otherwise indicated.
[4]. By way of example of the treatment such claims may receive when inmates pursue administrative remedies, see Gagne v State of New York, UID#2006-044-005, Claim No. 109626 (Schaewe, J., December 19, 2006); Joseph v State of New York, UID#2007-029-038, Claim No. 110061, Motion No. M-73873 (Mignano, J., October 1, 2007).
[5]. “. . . An inmate must file an ‘inmate claim form’ (form 1421) within five days after discovery of the loss with the deputy superintendent for administration or his designee. This time frame should be interpreted with some flexibility. They may be extenuating circumstances which would excuse late filing.” 7 NYCRR §1700.4(a).