New York State Court of Claims

New York State Court of Claims

NELSON v. THE STATE OF NEW YORK, #2008-030-009, Claim No. 111438


Inmate claimant failed to establish after trial that defendant’s agents at Green Haven Correctional Facility negligently lost or destroyed his personal property both during his transfer to an outside hospital, and as the result of a cell search

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:
April 7, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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 receipt.”[1] 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”[2] 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 1].

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. [Ibid.].

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 pains.”

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 cassettes.

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 pennies.”

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.

April 7, 2008
White Plains, New York

Judge of the Court of Claims

[1].All quotations are to trial notes or audiorecordings unless otherwise indicated
[2]. Claimant testified using three different dates for this incident: February 26, 27 and 28, 2005.