New York State Court of Claims

New York State Court of Claims

DETORRES v. THE STATE OF NEW YORK, #2007-040-028, Claim No. 104663


Synopsis


Prisoner – Bailment – Failure of Proof – Dismissed.

Case Information

UID:
2007-040-028
Claimant(s):
ETTORE DETORRES
Claimant short name:
DETORRES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104663
Motion number(s):

Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Ettore DeTorres, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Frederick H. McGown, III, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 31, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In this timely filed Claim, pro se Claimant, Ettore DeTorres, has failed to establish by a preponderance of the credible evidence that the Defendant was negligent in losing certain items of his personal property when he was transferred from Upstate Correctional Facility (Upstate) in Malone to Attica Correctional Facility (Attica) in Attica. The trial of this Claim was held by video conference on April 17, 2007, with the parties at Clinton Correctional Facility in Dannemora and the judge at the Court of Claims in Saratoga Springs.


Claimant testified that his property was packed “professionally” by the staff at Sing Sing Correctional Facility in Ossining on July 22, 1999 for his transfer to Upstate. He said the officers packed his property into four bags and a fifth bag contained his typewriter and some other items (see Ex. 3, I-64 Personal Property Transferred Form). Pursuant to Department of Correctional Services (DOCS) Directive 4917, an inmate transferred from one facility to another is allowed to transport up to four bags of personal property and one musical instrument or typewriter (see Ex. 2, p. 1). Directive 4913 provides that personal property in excess of the above limits will be disposed of or shipped to the new location at the inmate’s expense (see Ex. 2, p. 5).

Mr. DeTorres further stated that, upon arrival at Upstate, his property was opened, re-inventoried and “sloppily” re-packed by correction officers into property bags, and then stored until his Special Housing Unit (SHU) time was completed. Claimant testified that, upon leaving Upstate, the property was inventoried again and an eighth bag was packed, which contained some other items from his cell. Exhibit 4 is dated March 10, 2000 and indicates Claimant was being transferred from Upstate to Attica. On the bottom right side of the I-64 form, the number of bags listed is one and the form records that Correction Officer (C.O.) Dominic checked the property at Upstate on March 9, 2000. The I-64 form indicates the property was received at Attica on March 23, 2000 and was signed for by C.O. Baines and Claimant. The form also contains several handwritten notations: “3 I-64” “6 Bags Total. 4 on draft. 2 mailed” “missing 2 bags upon issue” (see Ex. 4). No testimony was elicited as to who made these notations or when they were made. In addition, Claimant did not offer any other I-64 forms into evidence at trial.

Claimant stated he signed a disbursement form to have money taken from his inmate account to have the extra bags mailed from Upstate to Attica. He stated that, after he arrived at Attica, he received two bags of property, then, a week later, he received a third bag. A few weeks after that, he received a fourth bag of property that contained State-issued property, which Claimant stated should not have left Upstate, as well as some of Claimant’s legal and other personal papers. He testified that he never received the two bags that were mailed. Claimant stated his belief that the two bags were never mailed. He filed a claim with the United States Postal Service, but it was denied because he did not have any postal receipts. Claimant stated that State employees who handled the mailing of his extra bags could not produce the postal receipts he needed to establish his Claim.

Claimant presented no other exhibits or witnesses. The Court reserved decision on the State’s motion to dismiss for failure to establish a prima facie case. The State rested without calling any witnesses.

Based upon the credible evidence presented at trial, the Court concludes that personal property of the Claimant was lost during the transfer from Upstate to Attica. However, the documentary evidence submitted by Claimant fails to establish which items of personal property were lost. Exhibit 4, the I-64 form Claimant received when he was transferred from Upstate to Attica, contains a notation that there are “3 I-64” forms. It appears that Exhibit 4 is a list of items contained in only one bag. Claimant presented no evidence as to what items were contained in the bags he did not receive, or the value of the property that was lost as a result. Further, he offered no testimony or documentary evidence to establish the amount he spent to mail the additional bags of property that exceeded the State limit.

Accordingly, the Court finds that Claimant has failed to establish his Claim for lost personal property by a preponderance of the credible evidence and the Claim is, therefore, dismissed.

The Chief Clerk is directed to enter judgment accordingly.




May 31, 2007
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims