Danny Nelson alleges in his claim that defendant’s agents at Green Haven
Correctional Facility [Green Haven] negligently lost or destroyed his personal
property both during his transfer to an outside hospital, and as the result of a
cell search. Trial of the matter was held on March 20, 2008.
Mr. Nelson testified that there were two occasions where his property was lost
that are the subject matter of his claim. On or about February 28, 2005
officers lost his sneakers, a brown sweatshirt and a thermal long sleeve shirt,
when he was removed to an outside hospital. He also testified that on or about
March 4, 2005 he was removed to the Special Housing Unit [SHU], and discovered
on his arrival that a J-WIN Radio and three (3) cassette tapes were missing. He
was “not given a property
He said he “received an
I-64” inventory form that he would not sign because it did not represent
all his property. “For example,” he explained, “they listed 9
cassette tapes on the form, but only 7 were in that property bag.”
On or about “February 27, 2005”
he was removed for a trip to an outside hospital. He was “not allowed to
wear the clothing . . . [he] was wearing at the time” - the thermal shirt,
the sweatshirt and the sneakers - “so they confiscated it, put it in a
bag, and told . . . [him] he would receive it back when . . . [he] returned back
from . . . [his] trip.” He had been in the hospital for “two or
three days for treatment of an anemic condition.” When he returned to
Green Haven, Sergeant Wilson - who had been the officer who took the property
initially - made a search for the property but could not find it. Claimant was
told to file a claim.
In terms of value, Mr. Nelson said the sneakers were worth $45.00, the
sweatshirt was worth $18.00 and the thermal shirt was worth $5.00. Claimant
said he was unable to obtain receipts from the package room, or even the forms
from the vendor company, which he asserted were kept in the property room by the
facility. His attempts to utilize FOIL to obtain such receipts were
unsuccessful, he claimed.
In March 2005 claimant was “already in keeplock.” One night,
correction officers “took
. . . [him] from . . . [his] cell, assaulted . . . [him]” and escorted him
to the facility SHU. When he got there and reviewed what property had been
moved, he saw that his J-WIN radio and 3 out of 10 cassette tapes were missing.
He valued the radio as worth $30.00, and he said the tapes were worth $10.00
each or $30.00 total. All items had been sent by his mother. He could not
obtain receipts for these items either despite FOIL requests.
Claimant submitted documents collectively marked as Exhibit 1. They include a
grievance form dated March 3, 2005, concerning the loss of property on the trip
to the hospital, in which he asks for “full replacement” of the
hooded brown sweatshirt the “long . . . john shirt, and state
sneakers;” the inmate personal property claim form dated March 12, 2005;
three letters to officials at Green Haven dated, respectively, May 4, 2005, June
8, 2005 and August 30, 2005; and an I-64 inventory form dated March 6, 2005
signed only by the correction officer ostensibly reflecting property received at
Green Haven SHU. [See ibid.].
With regard to the grievance form he filed on March 3, 2005, although claimant
testified that the facility “admitted” to their fault, reading the
actual document reveals that the grievance committee stated that “if the
facility . . . [were] at fault,” claimant should be reimbursed. [Exhibit
The court notes that in the text of the claim filed with the Court of Claims,
when describing the February 2005 loss, only the sweatshirt and the thermal
shirt are mentioned, but not the sneakers. [Claim Number 111438, ¶2].
Claimant attached the inmate claim form he filed to the claim filed with this
court. The inmate claim form lists “sneakers (white Reebok)”,
originally costing $45.00, one year old at the time of loss, in fair condition,
and seeks reimbursement for the item in the amount of $30.00, [Exhibit 1]. On
the grievance form he lists the sneakers removed for his hospital trip as
“state sneakers”, and makes no mention of their loss.
With regard to the March 2005 loss, the claim filed with the Court of Claims
indicates that the radio and cassette tapes were “confiscated.”
[Claim Number 111438, ¶2]. The inmate facility claim indicates that on
March 4, 2005 the radio was taken and he did not receive a “confiscation
ticket or property receipt.” [Exhibit 1]. The inmate claim form indicates
that the radio was 7 months old at the time of the loss, and worth its full
$30.00 value. [Ibid.]. The inmate claim form also indicates that on
March 4, 2005 several correction officers searched his cell and only 7 of the 10
cassettes he owned were placed in his personal property. [Ibid.].
The decision portion of the facility claim is not included in the exhibit
furnished, however it appears that Mr. Nelson received some kind of a denial of
his claim dated May 31, 2005, according to his side of correspondence to the
Superintendent at Green Haven, dated June 8, 2005. [Exhibit 1]. It appears Mr.
Nelson may then have filed another grievance with Green Haven in June 2005
because he wrote to inquire about its status on August 30, 2005. [Ibid.].
On cross-examination claimant stated again that this claim involved two
separate incidents. The February 2005 trip to the hospital was in regard
“to an emergency.” He said he “had back pains and stomach
With regard to the March 2005 property loss alleged, when asked about the I-64
inventory form he placed in evidence, containing the notation that he refused to
sign the form, he reiterated that the reason he would not sign is that there was
property listed that was actually not in his possession, namely, the radio and
the 3 cassette tapes. [See Exhibit 1]. He maintained that the
property was not there when he arrived at SHU, even though the officer had
signed the form himself attesting to its presence in SHU. [Ibid.].
Claimant did not have any I-64 forms from after his admission to SHU, although
he had been transferred to the general population since. He maintained that
“actually, no” - no form had been given to him. He said that when
he “went to Clinton” he did not receive a copy of the form. The
only records he has, he agreed, show him as possessing the radio and 9
Claimant was apparently transferred to Upstate Correctional Facility [Upstate]
in April 2005. Shown an I-64 form showing the property he possessed when he
went to Upstate [see Exhibit B], he agreed that it listed 9 cassette
tapes. He said that he had 10 tapes originally when he went to Green Haven SHU,
9 were listed on the form, and he only had 7 in his actual possession. The form
reflecting his transfer to Upstate SHU indicates that he had 9 tapes; it does
not reflect possession of a radio. [Id.]. Claimant signed the I-64
showing the property for his transfer to Upstate. [Id.]. Claimant agreed
that property on one form, that is then not indicated on a subsequent form,
might have been “otherwise disposed of” as suggested by the
assistant attorney general. Claimant said, however, that the State should still
be responsible “because they are supposed to give you a receipt.”
Claimant said that the radio was a gift from his mother; that it cost $29.95 or
“somewhere around there.”
On redirect, claimant reiterated that the inventory form showing
“property going in, when compared to an inventory taken later, should
contain the same property. If it is not there, it has been misplaced.”
Claimant also said that the value of the radio which his “mom purchased in
2004 might have been $28.00 but might have been $29.95; the difference was
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 (NY Dist. Ct. 1973). Receipts
are the best evidence of fair market value, although uncontradicted credible
testimony concerning replacement value may also be acceptable.
After carefully considering the evidence presented, including the testimony of
claimant and observing his demeanor as he did so, the court finds
claimant’s testimony was on the whole not credible. He has not
established all the elements of his claim by a preponderance of the credible
evidence. He has not established his own possession of the property, delivery,
negligence or value.
Claimant did not persuasively link, for example, through testimony or other
evidence, the items he listed as missing to receipts or package room documents.
While he testified that he had made efforts to obtain receipts or package room
documents, he did not show any documentary evidence of his efforts. It was also
not clear with regard to the sneakers, for example, whether these were his
private property or State issued items, since he described them differently in
different documents. While a failure to “pin down” exactly when
these incidents allegedly occurred or the circumstances - first he was on a
hospital trip for “anemia”, then it was for “back pain”
for example - is not fatal to his credibility, taken together with the lack of
receipts or other neutral documentation the court is not persuaded to credit
what little information he did submit in support of this claim.
Accordingly, claimant has failed to establish, by a preponderance of the
credible evidence his cause of action in the nature of a bailment, and claim
number 111438 is hereby dismissed in its entirety.
Let judgment be entered accordingly.