Tariq Wyatt alleges in Claim number 112547 that defendant’s agents
negligently lost his property in or about May 2006 during his transfer within
Sing Sing Correctional Facility to the Special Housing Unit [SHU] and thereafter
within the same facility from one gallery to the next. Trial of the matter was
held on October 19, 2007.
Mr. Wyatt testified that during these moves from “J-gallery
to the SHU, correction officers
packed up his property outside of his presence. When he “signed for the
property two days later,” he noticed some things were missing and asked
for a claim form. Claimant filed his claim [Exhibit 1] and also filed
grievances and wrote to the State Commissioner. [Exhibits 2 and 3]. He claimed
an amount of $25,000.00 because he is “mentally ill” and these
situations, among others, caused him to “inflict self harm.”
More specifically, he testified that the property was packed on May 19, 2006 by
Officer Lerouge. On May 21, he was called down to review the inventory and
“forced to sign” the form although he noticed the property was
missing. “Sergeant Kelly wrote a letter,” Claimant said, claiming
that the sergeant had inventoried the property, and that the items listed as
missing by claimant were still in his possession. Claimant testified that
“Sergeant Kelly lied.”
Items claimed to be missing are listed in the facility claim, and claimant
acknowledged that many items had only sentimental value. [Exhibit 1]. Claimant
testified that the facility claim list contains what he is seeking reimbursement
for in this court. He testified that he was missing two (2) personal net bags
that he valued at $2.00 each, personal and legal letters, medication, pictures,
deodorant and a toothbrush case all of which are not given values on the form;
and three (3) packs of tobacco at $.77 each; two (2) lighters at $.50 each;
fifteen (15) $.39 stamps; nine (9) $.03 stamps; sixty (60) $.01 stamps; and
petroleum jelly worth $.72. Claimant said there were other things, including a
facility net bag and a facility razor, but he could not really remember what was
missing. He also explained that he “tied things up in one net bag”
and then put the bag in another net bag, for fear that his property would be
taken. Anyone looking at the property would think it was only one net bag.
There were “three (3) bags in one” as he recalled. Officer Lerouge
packed all the property in one bag, but when it came time to conduct the
inventory there were items missing.
The grievance was accepted to the extent that the matter was investigated with
regard to claimant’s assertions that personnel were lying about what was
done with his property, and after investigation they found that Mr. Wyatt was
present during the inspection of his property - although there is no requirement
that he be present - and that at the time claimant was given a facility claim
form and instructions. [See Exhibit 2]. More correspondence between
claimant and the property claims investigator, Correction Officer Muller, and
correspondence related to the grievance was submitted in evidence, some of it
duplicating documents annexed to other exhibits. [See Exhibit 3].
From the SHU Property Process form “it can be seen that five bags were
packed up,” claimant said. [Exhibit 5]. “On the I-64 only three
bags are noted.” [Ibid.]. Claimant had some receipts, and some
records of commissary purchases that might have correlated somewhat with the
receipts and the items claimed, had he given testimony about it. [Exhibit 4].
On cross-examination he confirmed that he was packed up on May 19, 2006 by
Officer Lerouge outside of his presence. He did not view the packing up by
Officer Lerouge, and next saw the property on May 21, 2006 when the property was
to be inventoried.
Mr. Wyatt acknowledged that after he filed the inmate claim form, he was asked
to provide receipts and other paperwork to establish a claim of ownership, the
names of employees that he notified, and a copy of any I-64 form, in a
memorandum dated July 24, 2006 from C.O. L. Muller, Inmate Claims Investigator.
[Exhibit 1]. He explained that he wrote back to the investigator on August 3,
2006 explaining that he would need to get “into my personal
property” to find any receipts, and saying that “I believe that
commissary may have copies of my receipts, and that the property clerk may be
able to obtain copies of I-64.” [See Exhibit 1]. The inmate
personal property claim was denied in a memorandum from Correction Officer
Muller dated September 13, 2006. [See Exhibit 3]. Claimant acknowledged
he had not provided the receipts requested by Correction Officer Muller in July
The court’s review of the exhibits show that on September 28, 2006 -
after the facility claim was denied - claimant’s FOIL request to obtain
copies of receipts or commissary records was acknowledged as received. [Exhibit
4]. The form indicates he had requested copies of an I-64 form and commissary
receipts for January through June 2006. [Ibid.]. The October 30,
2006 response from the facility indicates that copies of his “. . . I-64
from Clinton and Fishkill . . . [and] commissary receipts . . . for April, June
and July . . . ” were enclosed. [Ibid.].
Officer Lerouge testified briefly. On May 19, 2006 he recalled being assigned
to A-Block, and the direction that he was to pack up inmate Wyatt’s bag.
By way of explaining the process, he said that “using clear plastic bags,
the property in the cell is itemized, and tagged.” He recalled packing
one net bag that contained letters. He does not recall there being any other
net bags. He wrote a memorandum to the officer investigating the claim at the
time saying the same thing. [Exhibit 1]. The cell was then empty of
claimant’s belongings. He also recalled the claimant asking him who packed
his property and telling claimant that he had, and that everything from the cell
went in as far as he knew.
Asked more specifically about the procedure upon pack up, Officer Lerouge
explained that everything in the cell is placed in the bag and taken down to the
office of the Officer in Charge [OIC], and then brought to the SHU where
“everything is opened up and I-64’d by an officer.” Only
correction officers handle the property. No other inmates touch the property.
Although there are occasions when the inmate himself will pack up his property,
this was not one of them.
When the officer first clears out the cell - as did Officer Lerouge - no
inventory is taken. The bags used are clear plastic bags. At SHU it is repacked
“neatly.” There could be a different number of bags once the
property is inventoried and packed neatly.
On cross-examination, Officer Lerouge said he did not open the net bag he found
in the cell. It was tied up, he did not know what was in the bag. He agreed
that he could not say whether letters were the only thing in the bag, although
that is what it looked like to him.
On redirect examination, he said he did not remember seeing any legal documents
per se, only envelopes lying in the bag.
He also confirmed that there are different size bags. The bag he used was
“probably a couple of feet by a couple of feet.”
It is not clear from a review of all the documents submitted whether claimant
ever appealed the denial of his facility claim, or the grievances he filed about
the purported failures to properly investigate the property loss.
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 replacement value may also be acceptable. Personally
meaningful items, such as photographs, have no fair market value beyond the
actual cost. Similarly, emotional distress occasioned by the loss is not
In this case, claimant has not established all the elements of a bailment
claim. He has not established his own possession of the property, delivery,
negligence or value. He did not persuasively link, for example, through
testimony or other evidence, the items he listed as missing to whatever
commissary receipts he did obtain. Claimant’s theory appears to be that
the property claimed either went missing between the time it was packed up in
his cell by Officer Lerouge, to the time it was inventoried on the I-64
inventory form, or after said inventory. Officer Lerouge’s testimony was
credible that he packed all of the contents of the cell. Thereafter, the
credible evidence establishes that these items either were not possessed
initially, or were later found as determined by the several investigations and
reviews initiated contemporaneously, and somewhat confusingly, by the claimant.
Additionally, claimant does not appear to have exhausted his administrative
remedies [see Court of Claims Act §10(9); 7 NYCRR Part 1700], an
issue raised in the defendant’s sixth affirmative defense, although it was
not argued at trial.
Accordingly, because claimant did not establish his initial possession of the
property prior to his removal - a necessary element to establish his cause of
action - or any negligence on the part of the correctional facility, he has
failed to establish by a preponderance of the evidence entitlement to the relief
requested, and Claim Number 112547 is in all respects dismissed.
Let judgment be entered accordingly.