Shawn Brown alleges in his claim that defendant’s agents at Green Haven
Correctional Facility either intentionally or negligently lost or damaged his
property when he was transferred within the facility on or about November 1,
2004. Trial of the matter was held at Sing Sing Correctional Facility on
February 8, 2008.
At the trial Mr. Brown testified that he was released from the special housing
unit [SHU] to the general population at Green Haven on November 1, 2004. He
discovered that he was missing “a substantial amount of
and immediately notified the
officers on duty of this fact. One officer called SHU and spoke to other
officers there. It appeared that some of the property was still in SHU, but
would be brought to him. Claimant said he never received the property.
Officers “helped to look for it”, including reviewing documentation,
but “it could not be found.”
Claimant testified, as set forth in his claim, that he was missing twelve (12)
shirts valued at $120.00; three (3) sweaters valued at $150.00; a 767-page trial
transcript valued at $3,068.00; twenty-three (23) magazines valued at $230.00;
seven (7) books valued at $75.00; one (1) prayer book valued at $37.00; and
five (5) personal family photos valued at $50.00. The total amount he seeks is
in the amount of $3,730.00.
From a review of the papers claimant submitted at trial, it appears that
claimant filed a grievance that was reviewed by the Inmate Grievance Resolution
Committee [IGRC], who issued its determination on December 2, 2004. [See
Exhibit 1]. The IGRC denied the claim, recommending, however, that claimant
pursue his personal property claim remedy since he was seeking monetary
reimbursement. [Ibid.]. In the interim, he appears to have filed
either one or two facility claims seeking such reimbursement, according to the
documents submitted. [Ibid.; see also Exhibit A]. One facility
claim given the number 080-8955-04 was disapproved at the initial review level
on November 29, 2004, with the correction officer noting “SHU Sgt. stated
inmate left with all his property.” [Exhibit A]. There is a further
notation that appears to be crossed out that states “Time . . .
(illegible) Directive #2737 Inmate has 5 days to file claim 11/1/04 to
11/7/04 more than five days”. [Ibid.]. No appeal from this
determination appears to have been filed. [Ibid.].
Another facility claim given the number 080-9001-05 was filed on or about
December 27, 2004, and was apparently denied in April 2005, according to a
memorandum from Officer D. Smith - the claims officer who had denied the other
facility claim in November - directed to claimant. [Exhibit 1]. In the
memorandum to Mr. Brown the officer states “The following claim
#080-9001-05 is the same as claim #080-8955-04. You can not file the same claim
twice, for the same incendent. Claim #080-8955=04 was denied 11/29/04”
Claimant did not testify to having completed the administrative appeal
procedures, nor was any documentation presented relative to establishing that he
had pursued an administrative appeal. Claimant did not testify as to when or by
what means he received the property claimed lost, nor did he give a basis for
the values indicated.
On cross-examination, claimant explained that when he first went to SHU, his
property was packed up into four (4) bags and, after his property was reviewed
for contraband and the like, he was given some of the property for his use in
his cell. The balance was taken away. When it was time to leave SHU in November
2004, he had a fifth bag comprised of the property in his cell. He was given
three (3) of the four (4) bags he came with originally, and was advised that the
other one would be sent to him.
Claimant pointed to a photocopied attachment he testified he had placed on his
facility claim, and which is included in Exhibit 1. He testified that in this
attachment, the signatures of the various correction officers who had been
helping him appear, attesting that one bag of property was missing. None of
these witnesses were subpoenaed to appear although claimant was given
instruction on the procedure for obtaining subpoenas on January 3, 2008,
according to the court’s file.
Claimant also said that the documents in Exhibit 1 show that he did appeal to
the superintendent, and that “she submitted it as a claim again.” He
then testified further that he did not know that he had to appeal, that he filed
the grievance, and that he “went by what . . . [he] was told to do.”
He then testified that since he had to “resubmit the whole thing”,
he never got a response, thus there was nothing to appeal.
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 replacement cost.
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 receipts or
package room documents.
Additionally, claimant did not establish that he exhausted his administrative
remedies as required [see Court of Claims Act §10(9); 7 NYCRR Part
1700], an issue raised in the defendant’s fourth affirmative defense, and
argued as one basis for the defendant’s motion to dismiss at trial.
Claimant’s testimony was somewhat equivocal on this point, since he
appeared to be aware that given the monetary amount he was seeking he would need
to appeal any administrative determination to the commissioner, but by the same
token he professed to doing “what . . . [he] was told” to do in
this regard. Nonetheless, he simply did not show that there had been
administrative review of the facility denial dated November 29, 2004. [Exhibit
Accordingly, claimant has failed to establish, by a preponderance of the
credible evidence his cause of action in the nature of a bailment, and has not
established that he exhausted his administrative remedies prior to pursuing his
claim in this court. Defendant’s motion to dismiss, upon which decision
was reserved at trial, is now granted, and Claim Number 111025 is in all
Let judgment be entered accordingly.