New York State Court of Claims

New York State Court of Claims

BROOKS v. THE STATE OF NEW YORK, #2008-030-015, Claim No. 111905


Inmate’s bailment claim sustained after trial. Errors in documentation chargeable to the State. Damages $50.00 plus interest for loss of typewriter.

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:
June 3, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Michael Brooks, an inmate proceeding pro se, alleges in his claim that defendant’s agents at Green Haven Correctional Facility (Green Haven) either lost or stole his personal property when he was packed up for transfer from that facility to Fishkill Correctional Facility (Fishkill). Trial of the matter was held on May 9, 2008 at Sing Sing Correctional Facility.

Mr. Brooks testified that on or about August 16, 2005 his personal property was packed by the draft correction officer in his cell partly in his presence. Mr. Brooks said that as they packed, he and the officer “got into a little bit of an argument about the way. . . [the officer] was packing

. . . [his] property.”[1] After the property was packed up, it was removed to the property room, where “presumably” tags and seals and other identifying information were put on the bags. In later testimony an I-64 inventory form apparently completed at Green Haven was submitted in evidence. [Exhibit A]. The court notes that it lists a Smith Corona typewriter, does not contain any serial numbers, and references a tag number ending with “915” as the tag that would be on the bag containing the typewriter. [Id.]. In terms of the number of bags sent from Green Haven, the form lists five bags total inclusive of a typewriter bag. [Id.]. The tag numbers for the remaining bags are “0772911, 0772912, 0772913 and 0772914.” [Id.].

When Claimant arrived at Fishkill the following day and reviewed his property, he asserts that the typewriter that “came out of the bag” was not his. Claimant said: “It was all broken up and smashed. They said it was a Smith Corona; I never really got a chance to look at the typewriter.” Claimant immediately reported the discrepancy to the officer, “refused to sign” the I-64 inventory form [see Exhibit 5], and Sergeant Occhino was called. When the sergeant arrived and compared the tags, they did “not match.” The sergeant “made” Claimant “re-I-64” his property, and on the new forms it was not indicated that claimant had arrived at Fishkill with a typewriter. [See Exhibit 2]. Sergeant Occhino wrote a memorandum to Lieutenant Patero to confirm that the typewriter (the broken one) was “confiscated.” [Exhibit 1]. The second I-64 form completed at Fishkill was also submitted, and does not include the typewriter as noted. [Exhibit 2]. Mr. Brooks said there was “a lot of other property missing” as well. What property there was, however, was to be “held for a possible claim”, as was noted, Mr. Brooks said, on the top right-hand corner of the memorandum from Sergeant Occhino to Lieutenant Patero. [see Exhibit 1]. Then, he said, “the property disappeared” and “they have no record of the property having been taken from . . . [him].”

Mr. Brooks said that the whole process “was botched from the beginning.” When personnel at Green Haven inventoried his property, they listed “something like twelve items.” [See Exhibit A]. Then, when inventory was taken at Fishkill, he had “well over 300 items.” [See Exhibits 2 and 5]. He said he was never in possession of his property throughout the whole process: “it just went from one draft room to another.”

Although other items were missing, the only thing he testified that he wanted in this claim was the replacement value of his typewriter. “Under current regulations”, he said, “you can only have a ‘clear case’ typewriter. Three years ago,” he said, “I would have been willing to just to end it, to get whatever the value was of my old typewriter.” Now, with the clear case requirements, he thought the value was approximately “$399.00 without a memory.” The value of his lost typewriter, he said, “was $127.24", when it was purchased in 2002, and submitted a receipt which he said represented the purchase of the typewriter. [Exhibit 4]. The receipt actually indicates that the cost of the Olympia Monica II Typewriter on March 4, 2002 was $88.79.

Mr. Brooks explained that when he arrived at Fishkill, he “was in the box immediately” because of a refusal to work in the porter pool. His property was inventoried again as he described, and he said again that the “new I-64 increased the amount of property . . . So there’s three different I-64s by three different officers with three different amounts of property, which was never in my possession from the get go, and the typewriter never reappeared on any of those I-64s and nobody knows where it is to this day, even the broken typewriter.”

Mr. Brooks said that an I-64 completed at Fishkill on August 18, 2005 at the special housing unit “shows the difference and discrepancies in the amount of property that was being mishandled. They just kept writing down the wrong tag numbers and bags.” [Exhibit 5]. Mr. Brooks also submitted correspondence he wrote to Lieutenant Patero and Captain Pelc, regarding his missing typewriter “and other property which . . . [he] never filed a claim for.” [ Exhibit 6]. He theorized that because he “had [an unrelated] legal case going, they just put . . . [him] in a position that . . . [he] couldn’t get . . . [his] legal work done because . . . [his] typewriter is just a very important piece of machinery. And that’s why . . . [he] filed a claim against the State.” He suspected that the “Olympia Monica II typewriter” that he saw in the property room - a topic he wrote to Captain Pelc about - was his own. [See Exhibit 6].

On cross-examination, although Mr. Brooks identified the I-64 dated August 16, 2005 referring to 4 bags and a typewriter [see Exhibit A] as the form completed at Green Haven, Mr. Brooks said there were a total of 7 bags, and that the form does not show that “3 bags were mailed.” [See ibid.]. Mr. Brooks confirmed that when he arrived at Fishkill “a typewriter” arrived with him, but said he was “told it was a Smith Corona” and as far as he knew it was not his “because the casing did not match the color of the one that was” his. He explained that his typewriter was a “subdivision of Smith Corona, the Olympia Monica.” The I-64 form that he signed when he departed Green Haven, he agreed, contains the indication that a Smith Corona typewriter was included, however Mr. Brooks said the officer “didn’t write the serial number of the Smith Corona, it’s not on there, so he didn’t follow the proper procedure.” [See Exhibit A]. He would not acknowledge that he was not given his property because the serial number on his permit did not match the serial number on the typewriter that arrived, insisting that “the reason

. . . [he] did not get . . . [his] property was because the tag numbers did not match the numbers written on the top of the I-64, so the sergeant was called down to verify this, verified that the tags did not match, and then confiscated the property that was in the bag.” The sergeant did not, however, make any “kind of record of this” such as a “contraband slip,” although he did write an (undated) memorandum as stated above indicating that the tag numbers did not “jive.” [Exhibit 1].

Shown what were represented to be photocopies of tags from the bags, Mr. Brooks explained the three-part system for their use. [Exhibit B]. He said the large tag “goes on the bag, and the other two tags are ripped off by the transferring officer and then the officer at the receiving facility”, respectively. [Id.]. He avowed that the photocopied exhibit presented showed only three tags, not the five tags counsel for the defendant suggested were shown. He did not “see bag number 5 which would be . . . [his] typewriter bag.” He would not agree that the tags are the same as on the I-64 from Green Haven dated August 16, 2005. [Exhibit A].

By way of rebuttal and to support arguments made about attempts to prevent his obtaining information, Mr. Brooks submitted a response to a FOIL request he had made wherein the responder writes,
“Enclosed are four (4) photocopies of the 4-2 housing unit log book for the dates of 08/17/05 and 08/18/05. Any entry related to you and/or your request have been included - all other info has been redacted. There was no infraction regarding your property tags or bags in the log book. I am also enclosed one (1) photo copy of a memorandum regarding your property when you were processed in to our facility . . . ” (sic) [Exhibit 7].

This document “confirmed,” he said, that although he tried to obtain photocopies of property tags, he could not; yet at trial the defendant submitted the photocopies of tags as Exhibit B.

Mr. Brooks said he does not know “how many bags were packed, what was transported, or received.” All he knows is that in the course of the transfer, his own typewriter was lost. If there were “four bags plus a typewriter” he had no idea, because when he got there it was all dumped on a table, and a broken typewriter - seemingly not his - was in the mix.

From the court’s review of the selected property tags - or portions of them - shown in Exhibit B, the numbers listed are “0772909 [this refers to a typewriter specifically on the tag]; 0772912, 0772913, 0772915, 0772914.” [Exhibit B]. Comparing this photocopy of the tags to the I-64 form ostensibly completed at Green Haven clearly does not present a complete picture. [Exhibits A and B]. The I-64 form lists the typewriter as being in a bag with the tag 0772915. While this is one of the tags stapled together in the photocopy of the tags presented by the State in Exhibit B, it does not correlate with the photocopy of tag number 0772909 in Exhibit B that specifically indicates that it belongs to the typewriter bag. Moreover, the form reflecting the inventory taken at Fishkill, which Mr. Brooks refused to sign on August 18, 2005 - apparently when he was being checked in at the special housing unit, which he testified was an “immediate” occurrence upon his arrival - lists ten (10) tag numbers, each seven (7) digits long and none having any correlation to the tag numbers referred to above. [See Exhibit 5]. No other witnesses testified and no other relevant 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.

Although claimant did not testify to having completed the administrative appeal procedures, there was documentation presented in his filed claim relative to establishing that he had pursued an administrative appeal, thus the court is satisfied that he exhausted his administrative remedies prior to pursuing a claim in this court. See Court of Claims Act §10(9); 7 NYCRR Part 1700.

In this case, claimant has established the elements of his bailment claim, as the only witness whose testimony - although somewhat sketchy in places - was largely credible and uncontradicted. He has established his own initial possession of the typewriter, delivery and value, as well as an unexplained failure to return it. Indeed, any lack of coherent paperwork is chargeable to the State since completion of the I-64 inventory forms is done by its agents, on forms that vary from facility to facility [see e.g. Exhibits A, 2 and 5]. The court also finds it persuasive that property was apparently packed up outside the presence of the claimant in part, and thus what was ultimately noted on the form was within the exclusive control of the State’s agents. Claimant indicated his refusal to sign the form on the receiving end and his immediate protest.

Claimant’s testimony concerning the value of the property, as well as the receipt for its purchase in 2002, together with applicable depreciation, establish the total loss as $50.00. The typewriter was more than one (1) year old at the time of the loss, thus depreciation is fairly applied to arrive at fair market value as required. See Schaffner v Pierce, supra, at 24.

Accordingly, Claimant is hereby awarded damages in the amount of $50.00 plus statutory interest [§16 State Finance Law; § 5004 Civil Practice Law and Rules], which the Court finds presumptively reasonable, from the date of accrual of August 17, 2005 to the date of this Decision, and thereafter to the date of the entry of judgment pursuant to §§ 5001 and 5002 Civil Practice Law and Rules.

To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).

Let Judgment be entered accordingly.

June 3, 2008
White Plains, New York

Judge of the Court of Claims

[1]. All quotations are to trial notes or audio recordings unless otherwise indicated.