Claimant proves bailment and recovers fair market value of his lost property.
|Claimant short name:||CHRISTIAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the only proper Defendant.|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||STEVE CHRISTIAN, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 26, 2008|
|Official citation:||21 Misc 3d 1128(A)|
|See also (multicaptioned case)|
Steve Christian ("Claimant") filed claim No. 111195 on July 28, 2005 alleging Defendant lost and/or destroyed his personal property while he was housed in Attica Correctional Facility ("Attica"). Claimant proceeded pro se and I conducted a trial on this matter on June 17, 2008 in Rochester, New York.MOTION
Defendant contends this Court lacks subject matter jurisdiction because Claimant failed to exhaust his administrative remedies before filing for relief in the Court of Claims. Defendant did raise and, therefore, preserve this affirmative defense in its answer. I also note that the fourth paragraph of the answer admits that Claimant filed a facility claim on September 5, 2004, that the claim was denied on September 30, 2004, and that Claimant appealed the denial on May 6, 2005. At the conclusion of Claimant's direct case, Defendant moved for dismissal of the claim, asserting that Claimant's appeal was untimely and, further, that Claimant had filed a Notice of Intention in October 2004 (Exhibit H), prior to his institutional appeal on May 6, 2005.
In determining Defendant's motion, I note initially that, although Claimant's filing of a notice of intention did not benefit his cause, it certainly did no harm. Lost property actions are governed by Court of Claims Act § 10(9) which provides that all claims must be filed and served within 120 days of exhaustion of the claimant's administrative remedies. As this 120-day period is not subject to extension or alteration, Claimant's filing of a notice of intention was irrelevant (see e.g. Roberts v State of New York, 11 AD3d 1000; McCann v State of New York, 194 Misc 2d 340).
In examining Claimant's institutional claim for lost property (Exhibit 10), specifically Part 4, I note that the only date indicated is a time-stamp from Attica's Business Office that states "Received APR 05 2005." Claimant did not date the handwritten statement he executed in Part 4, indicating his wish to appeal the initial denial of his claim. He stated at trial that he did, in fact, submit his appeal in a timely manner, but that he did not receive a response from the superintendent until he pursued it further in April 2005. I find Claimant's description of the events leading up to the filing of his Court of Claims case plausible and supported by the fact that Defendant acted upon the appeal's merits. On May 6, 2005, Defendant denied Claimant's appeal of his institutional claim, stating "A claim may be filed in the NYS Court of Claims. Your claim must be filed and served within 120 days of the date of this final determination, as required by law" (Exhibit 10; see also Exhibit 11). Accordingly, as the claim was filed within 120 days of what Defendant itself called the final determination, I find that the claim is timely.DECISION
Claimant testified that, on August 31, 2004, at approximately 11:30 a.m., he was removed from his cell at Attica and escorted to Attica's Special Housing Unit ("SHU"). Claimant states that agents of Defendant locked his cell to secure his personal property at that time. He did not see his property again until September 3, 2004. However, Claimant received a copy of Attica's "SHU Property Process Form" ("SHU Form"), dated August 31, 2004, signed by the officer who packed Claimant's property, J. Rybak (Exhibit 4).
The SHU Form indicates Officer Rybak had packed Claimant's property in five draft bags by 1:20 p.m. on August 31, 2004. Officer Rybak, who testified in Defendant's direct case, stated that inmates confined in SHU are not permitted the same access to their property as inmates in general population. He indicated that the property listed on Exhibit 4 was all the property Claimant would be permitted to possess in his cell in SHU. The SHU Form explicitly states that all the indicated property would be packed in one bag, and maybe a second bag, if necessary. As indicated on the SHU Form, Officer Rybak used two bags to transport the property Claimant was allowed to possess in his SHU cell.
Officer Rybak indicated on the SHU Form that he packed Claimant's legal documents in the second bag of property Claimant would have been allowed in his SHU cell. However, no specific documents are identified on the form and Claimant testified that it was only his legal mail mixed up with his personal mail that Officer Rybak packed. Claimant stated he was missing hearing and trial transcripts, motion papers and decisions, all of which he could and did replace. Exhibit 21 shows a charge to his inmate account in the amount of $35.00 to the National Archives. Attached to Defendant's copy of the claim is a copy of a letter from the National Archives explaining copy charges for duplicates of his legal documents. I have no other documentation before me that specifies what documents he acquired copies of and the costs to do so.
Determining fair compensation for lost legal documents is difficult (Lamountain v State of New York, Ct Cl, December 1, 2000 [Claim No. 99167], Bell, J., UID No. 2000-007-535; citing Erdheim v State of New York, Ct Cl, May 22, 2000 [Claim No. 97545], Bell, J., at 3-5, UID No. 2000-007-517). In order to recover damages, Claimant must establish the identity and value of legal documents (Johnson v State of New York, Ct Cl, August 23, 2000 [Claim No. 93968], Mignano, J., UID No. 2000-029-014). Claimant's testimony identified the legal documents. However, the only evidence before me representing an effort to establish the value of the lost legal documents and his efforts to acquire replacements is Exhibit 21. I award Claimant $35.00 for his lost legal documents.
The SHU Form also indicates that a total of five bags were needed to hold all Claimant's property. The three bags that Claimant could not take to the SHU were placed in storage. Although Officer Rybak testified that an I-64 Form (an inventory of the property in the remaining three bags) would have been done at the same time, no I-64 dated August 31, 2004 was produced at trial.
Claimant stated that he saw his personal property that was kept in storage next on September 3, 2004. Exhibit 5 is an I-64 Form executed by Officer D. Seider at Attica. Officer Seider testified on Defendant's direct case that he was responsible for inventorying the property, which meant bringing Claimant's three draft bags to a table and laying it all out for Claimant to review. He noted that these three draft bags contained the property Claimant was NOT permitted to have in his SHU cell. Claimant stated he refused to sign the I-64 on September 3, 2004 because some of his property was missing.
It appears that Claimant was transferred from Attica SHU to Upstate Correctional Facility ("Upstate") SHU on September 20, 2004. However, before he left Attica, one bag of his property was inventoried and the bag's contents were acknowledged by Claimant (Exhibit 9). It appears that this bag held the contents of Claimant's SHU cell, and comprised the property that would be allowed in his SHU cell at Upstate.
This claim is one alleging that the Defendant took possession of Claimant's personal property, creating a bailment, and then lost it through its negligent handling. The State has a duty to secure an inmate's personal property (Pollard v State of New York, 173 AD2d 906). Claimant's burden of establishing a prima facie case of negligence is satisfied once he demonstrates the delivery of property to Defendant, and the Defendant's failure to return it in the same condition. The burden then shifts to Defendant to come forward with evidence to "overcome the presumption" (Weinberg v D-M Rest. Corp., 60 AD2d 550). At trial, Claimant provided proof of ownership of the following missing property:
Beard trimmers (Exhibit 23)
Typewriter (Exhibit 24) (damaged)
Stereo Radio/Cassette Player (Exhibit 25)
Books and periodicals (Exhibits 26, 27 and 28)
I find that the Claimant has demonstrated a prima facie case of bailment as to the property discussed above and that Defendant has failed to adequately overcome this presumption. Claimant is, therefore, entitled to recover the fair market value of the lost property (see Phillips v Catania, 155 AD2d 866). However, I have no proof of ownership or value for any other items claimed to be missing or damaged. All of the above referenced property is three years old or more. I award Claimant a total of $125.00 for his lost and damaged property, in addition to the $35.00 for his lost legal documents.
While other items listed on Claimant's institutional claim appear to have been transferred from Upstate in May or April of 2004, I have no testimony or other evidence of cost or ownership from which I can make a determination of value for purposes of this claim.
Based upon Claimant's testimony and the other evidence before this Court, Claimant is entitled to an award of $160.00 for his lost property, together with the appropriate interest from September 3, 2004 until March 3, 2005 and from July 28, 2005 until the date of this decision and thereafter to the date of entry of judgment herein, pursuant to CPLR 5001 and 5002.
All other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.
It is ordered that, 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.
September 26, 2008
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims