New York State Court of Claims

New York State Court of Claims

DOLAN v. THE STATE OF NEW YORK, #2008-038-109, Claim No. 112010


Synopsis

Bailment claim granted in part, and damages awarded in the amount of $209.52. Evidence proferred by defendant merely to show that property bags were shipped by USPS was insufficient to rebut presumption of negligent bailment, when defendant did not offer any evidence demonstrating that it exercised ordinary care, or that the items were not lost while in defendant’s control either before or after claimant’s bags were in the control of the USPS.

Case Information

UID:
2008-038-109
Claimant(s):
RORY DOLAN
Claimant short name:
DOLAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112010
Motion number(s):

Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
RORY DOLAN, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Belinda A. Wagner, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 14, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate in a State correctional facility, filed this claim on February 24, 2006, seeking damages for: (1) allegedly unlawful confinement in a Special Housing Unit (SHU) at Franklin Correctional Facility (CF) from June 10 through June 14, 2005, and (2) personal property that was allegedly lost concomitant to his transfer from Franklin CF to Clinton CF in June 2005. The trial of this claim was conducted by videoconference on October 30, 2007, with the parties appearing at Clinton Correctional Facility in Dannemora, New York, and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony; defendant offered the testimony of New York State Department of Correctional Services (DOCS) Lieutenant Carl Dashaw and DOCS employee Debra A. Stone. Claimant offered twenty-four documents into evidence, of which all but one have been received in evidence.[1] Defendant offered four documents into evidence, all of which were received in evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court makes the following findings of facts and conclusions of law.
UNLAWFUL CONFINEMENT

On June 1, 2005, claimant was transferred from Clinton CF, a maximum security prison, to Franklin CF, a medium security prison. It is undisputed that claimant should not have been transferred to Franklin CF because he had been previously arrested for attempting to escape from the Suffolk County jail in 1991, and accordingly, his security classification made him ineligible to be placed in a medium security prison. Claimant testified that prior to his transfer to Franklin CF, he notified his prison counselor and DOCS staff at Clinton CF of his prior escape arrest. After his transfer to Franklin CF, DOCS officials discovered that DOCS had erroneously changed claimant’s security classification, and that, indeed, he should not have been transferred to a medium security facility. Lt. Dashaw testified that on June 10, 2005, he authorized claimant’s placement in a SHU at Franklin CF. Claimant was released from Franklin CF SHU and transferred back to Clinton CF on June 14, 2005.

“To establish [a] cause of action [for unlawful confinement] the [claimant] must show that: (1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged” (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929 [1975]). Restrictive confinement in SHU is privileged to the extent that it is imposed “under color of law or regulation, specifically in accordance with regulations” (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).

Manifestly, the evidence at trial satisfied the first three elements of an unlawful confinement cause of action. As to the last element – that the confinement was imposed in accordance with regulations or otherwise privileged – Lt. Dashaw testified that he authorized claimant’s transfer to the SHU in order to segregate him from the general population and confine him in a more secure environment pending the completion of paperwork and the approval of claimant’s transfer to another facility. However, no evidence or argument was offered that would have demonstrated the regulatory authority for placing claimant in SHU under the circumstances here presented. While 7 NYCRR § 301.6 (a)(3) appears, on its face, to authorize an inmate’s admission to an SHU while in a medium security facility and awaiting transfer, defendant did not cite or otherwise rely upon this regulation at trial. Given the complexity of DOCS’ disciplinary rules, security classification determinations, and housing classifications, the Court is unwilling to conclude, sua sponte, that this provision authorized claimant’s heightened confinement in this case in which there was not a disciplinary component (cf. Mitchell v State of New York, UID # 2004-032-053, Claim # 108857, Motion # M-68156, Hard, J. [June 22, 2004]). Defendant did not offer any argument that claimant’s confinement in the SHU was otherwise privileged (see Applegate v State of New York, UID #2002-011-109, Claim No. 103537, McNamara, J. [July 8, 2002]). Accordingly, the Court finds that defendant is liable to claimant for unlawfully confining him to a special housing unit.

With respect to damages for the unlawful confinement, the evidence demonstrated that claimant was confined to the SHU and concomitantly denied commissary, package and telephone privileges for almost all of five days (from the afternoon of June 10, 2005 through the morning of June 14, 2005). Claimant offered no evidence of particular physical or financial injury caused by the unlawful confinement. The range of damages that have been awarded in recent years for wrongful confinement is from $10.00 to $60.00 per day (see Vaughn v State of New York, UID # 2005-031-529, Claim # 108937, Minarik, J. [Mar. 29, 2005] [$15.00 per day]; Amaker v State of New York, UID # 2005-010-013, Claim # 107664, Ruderman, J. [Feb. 3, 2005] [$10.00 per day]; Senor v State of New York, UID # 2005-015-528, Claim # 108724, Collins, J. [Dec. 1, 2005] [$50.00 per day, plus $10.00 per day for lost privileges]). Here, claimant’s unlawful confinement did not follow a period of disciplinary confinement, but was a result of defendant’s error in transferring claimant, even after claimant advised defendant’s agents that he should not be transferred to Franklin CF. Thus, claimant was wholly blameless for his wrongful confinement (see Senor v State of New York, supra). The Court concludes that claimant will be adequately compensated in the amount of $25.00 per day, for a total of $125.00.
BAILMENT
In anticipation of the transfer of claimant and his property back to Clinton CF, claimant was taken to a cell outside of the Franklin SHU on June 11, 2005. He and Correction Officer (CO) Secore packed his personal property into seven bags, as evidenced by the “Personal Property Transferred” Form (“I-64 Form”) completed on that date (Exhibit 19). Subsequently, and outside of claimant’s presence, the seven bags were opened and repacked into eight bags. Four bags were packed on June 13, 2005 by CO Fleury (Exhibit 20),[2] and the other four bags were packed on an unspecified date by CO Premo (Exhibit 21). The four bags that were re-packed on June 13, 2005, along with an additional bag containing claimant’s Smith Corona typewriter, were shipped directly to Clinton CF along with claimant on June 14, 2005. The remaining four bags were shipped through the United States Postal Service (USPS). Claimant testified that he received two of those four bags on June 22, 2005. The third bag was received at some unspecified date thereafter, and the fourth bag was received by claimant on September 3, 2005.

Claimant discovered that numerous items that he had packed in the seven property bags on June 11, 2005 were not in the bags that he received after his transfer back to Clinton CF. He filed two administrative claims with DOCS (Exhibit 2). In addition, claimant filed a third administrative claim seeking compensation for damage to his typewriter that had occurred during transit from Franklin CF (Exhibit 2). That claim was approved in part, and claimant was offered $42.30 in settlement of his claim for damage to the typewriter (see Exhibit 12), which he did not accept.

The claim in this judicial forum seeks compensation in the amount of $238.14 for the loss of numerous personal items, including postage stamps, nutritional supplements, combination locks, personal hygiene products, cigarettes, electronics, sunglasses, towels and food products. In addition, claimant seeks $162.50 for the damage to his typewriter, as well as reimbursement of $8.74 for the cost of shipping his typewriter to Smith Corona for repair.

An inmate may assert a negligence claim against the State sounding in bailment (see Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). The State has a bailee’s common-law duty to secure the property of inmates within the State’s prison system and may be liable for failing to carry out that duty (see id.). To establish a prima facie case, a claimant must establish that he or she delivered property to facility officials and that the property was not returned (see Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; Alston v State of New York, 9 Misc 3d 1126[A], 2005 NY Slip Op 51796 [U], *2 [Ct Cl 2005]). Further, “[w]here 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 . . .” (Board of Educ. of Ellenville Cent. School v Herb’s Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981] [citation omitted]). A prima facie case creates the presumption of a negligent bailment, and shifts the burden to the bailee to demonstrate that the loss was due to circumstances not within its control or that the property was damaged without its fault, or by establishing that it exercised ordinary care (see Alston, supra; Jackson v State of New York, UID # 2007-044-010, Claim # 109373, Schaewe, J. [Mar. 22, 2007]). The measure of recovery when bailed property is not returned is its fair market value, i.e. the original purchase price of the property less reasonable depreciation (see Phillips v Catania, 155 AD2d 866 [4th Dept 1989]). “Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable” (Rush v State of New York, UID #2007-030-019, Claim No. 110361, Scuccimarra, J. [June 18, 2007]).

Claimant has proven by a preponderance of the credible evidence that he delivered to defendant all of the property that was inventoried on the I-64 form dated June 11, 2005 (Exhibit 19). The Court finds that correction officers subsequently opened the seven property bags inventoried in Exhibit 19 outside of claimant’s presence and repacked his property into eight bags. Four of those eight bags are inventoried on Exhibit 20, and four bags were inventoried on Exhibit 21. The bags that were inventoried on Exhibit 20 accompanied claimant to Clinton CF on June 14, 2005, along with a fifth bag containing his Smith Corona typewriter. The other four bags that were inventoried on Exhibit 21 were shipped to Clinton CF via the USPS.

A number of items that were packed by claimant (see Exhibit 19) do not appear on the inventories of items that were repacked by the COs (Exhibits 20 and 21). These items are: seven unopened bottles of creatine (valued by claimant at $27.21), two new sticks of deodorant ($8.50), two unopened packs of cigarettes ($8.64), one pair of Bolle Sport sunglasses ($29.97), and one new, unused towel ($7.99). The Court finds that these items were lost while in defendant’s control, and defendant has offered no evidence to rebut claimant’s prima facie showing of a negligent bailment of these items. Claimant offered uncontradicted testimony as to the value of these items, all of which were new and/or unopened with the exception of a pair of one-year-old sunglasses. The Court assigns a depreciation of 10% to the sunglasses, and values them at $26.97; the remainder of the items are valued at a total of $52.34.

Claimant credibly testified that a number of items that were listed on Exhibit 19 (the inventory of items packed by claimant) and were also listed on Exhibit 21 (the inventory of the bags that were shipped by USPS) were not returned to his possession after his return to Clinton CF. Claimant’s credible testimony establishes a presumption of negligent bailment. Defendant seeks to rebut the presumption with the categorical contention that these items were in bags that were shipped via the USPS. However, defendant did not offer any evidence demonstrating that the items were not lost while in defendant’s control either before or after claimant’s bags were in the control of the United States Postal Service, and thus, the presumption of negligent bailment is not defeated (see Jackson v State of New York, UID # 2007-044-010, Claim # 109373, Schaewe, J. [Mar. 22, 2007]; Sinclair v State of New York, UID # 2001-019-012, Claim # 98271, Lebous, J. [June 22, 2001]). These items at issue include two combination locks (valued at $10.60), two sealed bottles of olive oil ($6.54), eleven cans of calamari ($7.81), three cans of clams ($3.00), three cans of smoked oysters ($4.29), one container of grated cheese ($1.75), and fourteen cans of beans ($6.16). The Court finds defendant is liable to claimant for these items in the amount of $40.15, which is supported by claimant’s uncontradicted testimony as to the price of each of these items.

Claimant has particularized his claim for certain additional unopened and unused food items that are reflected on the I-64 forms only within general categories defined by their packaging, such as cans or boxes. The Court credits claimant’s unrebutted testimony that fourteen bags of rice, one canned ham, and one canned roast beef were packed by him into the seven bags, that defendant did not return them to him, and that they cost him a total of $13.12. Therefore, defendant is liable to claimant in that amount.

Claimant also testified that defendant failed to return seventy 37-cent USPS postage stamps,valued at $25.90, that were listed on Exhibit 20 (the I-64 of the four bags that accompanied claimant to Clinton CF). Although Exhibit 19 does not indicate that claimant delivered postage stamps to defendant on June 11, 2005, Exhibit 20 reveals that seventy stamps were inventoried and thus placed in defendant’s possession by claimant. The Court credits claimant’s testimony that he never received the stamps, and therefore finds that claimant has established a prima facie case of negligent bailment which defendant has failed to rebut, and defendant is therefore liable to claimant in the amount of $25.90.

Claimant further contends that defendant also failed to return two items – a pair of Sony headphones and a beard trimmer – that he testified were delivered into defendant’s possession, but which are not reflected in any of the I-64 forms, including Exhibit 19. Because of the lack of documentation as to these items, the Court finds that claimant has failed to make a prima facie case that these items were, in fact, delivered into defendant’s possession.

Finally, the Court finds that the documentary evidence and claimant’s credible uncontradicted testimony proves by a preponderance of the credible evidence that claimant delivered a functioning Smith Corona typewriter to defendant, and that defendant returned it to claimant in a damaged condition. This evidence creates the presumption of negligent bailment, which defendant did not rebut. As claimant did not adduce any reliable evidence as to the value of the damage to the typewriter at the time it was damaged, the Court will adopt DOCS’ valuation of the damage to the typewriter, as reflected in its settlement offer to claimant, at $42.30. In addition, claimant has submitted unrefuted evidence that he is entitled to further damages in the amount of $8.74, which he paid to ship the typewriter for repairs (see Exhibit 7; cf. Walker v State of New York, UID # 2000-017-009, Claim # 98871, O’Rourke, J. [June 16, 2000]).
CONCLUSION
Claimant is therefore awarded damages on his bailment claim in the amount of $209.52 (Two Hundred and Nine Dollars and Fifty Two Cents) with statutory interest from June 14, 2005 to December 14, 2005 and from February 24, 2006 to the date of this Decision, and thereafter to the date of entry of judgment. Claimant is also awarded damages on his unlawful confinement claim in the amount of $125.00 (One Hundred and Twenty Five Dollars). Any and all motions upon which the Court may have previously reserved decision or which were not previously determined are hereby denied. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

The Chief Clerk of the Court is directed to enter judgment accordingly.


February 14, 2008
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims




[1]. At trial, claimant offered into evidence three exhibits, marked claimant’s Exhibits 22 through 24 for identification, to which defendant objected. The Court reserved decision on the introduction of said exhibits into evidence pending the Court’s receipt of the original exhibits. The Court now overrules defendant’s objections and receives Exhibits 22 through 24 into evidence.
[2]. While the I-64 Form that inventoried these four bags (Exhibit 20) purportedly shows claimant’s signature acknowledging his presence while these bags were packed, the Court credits claimant’s testimony that he was not present and notes that the signature appears to differ from claimant’s receipt signature on that form, as well as from that on the other I-64 Forms in evidence (see Exhibits 15 through 19 and 21).