New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2008-041-501, Claim No. 109605


Synopsis


Inmate claimant is awarded judgment for the fair market value of a television set where defendant offers no explanation for loss of claimant’s property.

Case Information

UID:
2008-041-501
Claimant(s):
JOSE RIVERA
Claimant short name:
RIVERA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109605
Motion number(s):

Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
JOSE RIVERA, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 10, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Jose Rivera (claimant) alleges that the defendant failed to deliver a television set he owned to a fellow inmate upon claimant’s transfer from Clinton Correctional Facility (Clinton) to Southport Correctional Facility (Southport) and thereafter failed to account for the ultimate disposition of the television set.


According to the defendant’s “Inmate Guidelines for Possession/Use of a Personally Owned Television Sets”:
“8. Inmates may not loan, sell, or give away their television set without proper authorization.

a. Inmates being transferred to a facility where personally owned television sets are not allowed may:

1) With the Superintendent’s approval, transfer ownership of the television set to another inmate only upon transfer date.
***
c. Following written approval of the Superintendent, transfer of the television set to another inmate shall be handled by the Disciplinary Office so that the set may be re-engraved and proper paper controls can be maintained.”
On January 14, 2003, Wende Correctional Facility (Wende) inmate Pedro Rivera signed an “Authorization for Disposal of Personal Property” form in order to transfer ownership of the television set in question to claimant, a then fellow Wende inmate. Pedro Rivera’s request to transfer ownership of the television set to claimant was approved. On January 19, 2003, claimant acknowledged receipt of the television set by signing the “Authorization for Disposal of Personal Property” form. On that same date an employee of defendant’s also signed the “Authorization for Disposal of Personal Property” form, verifying the transfer of the television set to claimant.

Claimant was thereafter transferred to Clinton. The television set was in claimant’s possession at Clinton on October 11, 2003 when claimant and an employee of defendant’s each signed a copy of the “Inmate Guidelines for Possession/Use of a Personally Owned Television Set.”

Beginning February 18, 2004, claimant was confined in the Clinton Special Housing Unit (SHU), in which he was not permitted to have a television set. On March 15, 2004, claimant was transferred from the Clinton SHU to Southport, where personally owned television sets were prohibited. Claimant testified that on March 15 he signed a form requesting transfer of the ownership of his television set to a fellow inmate whose name claimant could not recall.

Claimant further testified that he saw what he believed to be his television set on March 15, 2004, just prior to his transfer to Southport, as his belongings had been gathered by defendant to ready the transport of those of his possessions permitted to accompany him to Southport. Prior to March 15, 2004, claimant had last seen his television set in his general population cell just before his confinement in the Clinton SHU, on February 18, 2004 (although claimant testified he was confined to the Clinton SHU “approximately February 21, 2004,” the Court finds as a matter of fact, based upon documentary evidence, that such confinement began on February 18, 2004).

On March 20, 2004, claimant filed an administrative claim with defendant, alleging that the television set had never been delivered to the inmate intended by claimant to receive it. According to claimant, the administrative claim was denied by defendant because there was no record of claimant having transferred ownership of the television set. A “Claim Investigation Report,” dated April 21, 2004, admitted into evidence at trial, stated that “Clinton has no record of this inmate transferring a TV to another inmate. The inmate has not provided proof that a TV was turned over to Clinton’s Pkg Room for transfer to another inmate.”
Claimant was the only witness at trial. The only exhibit admitted into evidence, claimant's Exhibit 1, is a copy of the defendant’s “Response to Claimant’s Demand for Discovery and/or Inspection,” attached to which are the documents referenced above, among others. Exhibit 1 also included defendant’s “Response to Claimant’s First Request for Admissions and Interrogatories.”

Defendant called no witnesses and, in its “Response to Claimant’s Demand for Discovery and/or Inspection” and “Response to Claimant’s First Request for Admissions and Interrogatories,” offered no explanation as to the disposition of the television set after claimant’s transfer from Clinton to Southport on March 15, 2004. Defendant did not produce any records showing that claimant requested a transfer of the television set to another inmate, that such a transfer request was approved in writing by the superintendent or that the television set was ever received by another inmate.

“To establish a prima facie case of negligence in a bailment transaction, claimant must demonstrate that his property was deposited with the defendant and the defendant failed to return it. . . . Once claimant meets his burden, there is a rebuttable presumption that the defendant is negligently responsible for the loss, and defendant must come forward with proof explaining the loss. . . . The measure of recovery for the loss of bailed property is fair market value, which can be established by evidence of the original purchase price less a reasonable rate of depreciation” (Amaker v State of New York [Ct Cl, Hard, J., UID #2006-032-511][1]; see Claflin v Meyer, 75 NY 260 [1878]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]; Miceli v State of New York, 179 Misc 2d 424, 428-429 [Ct Cl 1998]).
These principles are embodied in defendant’s own regulations at 7 NYCRR 1700.7 (Directive 2733) which provides at relevant part as follows:
“(b) Property last in control of the department. When an inmate’s property was last in the control of the department or its agents, and the department fails without good explanation to deliver it in to the inmate or the inmate’s designee in the same condition as when received by the department, then there is a rebuttable presumption that the department is negligently responsible for the loss.

(1) To rebut the presumption of negligence, the reviewer must determine that all department staff who had a duty to protect the inmate’s property carried out their duties in an acceptable way. If that is not shown or if it is shown that the department’s staff failed to meet their responsibilities, then the department will be deemed to have been negligent.”
Claimant met his burden, through documentary proof, of showing that he owned the television set as of January 19, 2003 and that it was in his possession at Clinton on October 11, 2003. Claimant’s testimony demonstrated that the television set was left in defendant’s possession upon his confinement to the SHU on February 18, 2004 and his transfer to Southport on March 15, 2004, and that defendant failed to return the television set to claimant or otherwise account for its disposition.

The defense offered by defendant was that claimant did not own the television set (and therefore defendant had no liability to this claimant for the unaccounted disposition of his formerly owned television set) since claimant admittedly sought to transfer it to another inmate prior to his transfer to Southport on March 15, 2004. The law provides, however, that claimant would not have been divested of ownership of the television set until defendant delivered it to claimant’s intended recipient, a fact not proved (see Matter of Goggins, 227 AD2d 481 [2d Dept 1996] appeal dismissed 88 NY2d 1017 [1996]; see 62 NY Jur 2d, Gifts §18). Moreover, contrary to its defense that claimant no longer owned the television set, defendant established on cross-examination that claimant had not obtained the required written approval of the superintendent necessary to properly transfer the television set to another inmate.

The proof shows that despite his intention and self-described attempt to do so, claimant did not in fact transfer ownership of the television set since the intended transfer was not approved in writing by the superintendent, as required by the facility rules, nor was any proof offered to show that the television set was delivered to, or received by, the claimant’s intended recipient.

The credible proof shows that claimant’s television set was in claimant’s cell at Clinton prior to claimant’s confinement in the Clinton SHU and eventual transfer to Southport. While claimant was in the SHU and during his transfer to Southport, the television set remained under defendant’s control. It was therefore incumbent on the defendant to present proof negating claimant’s ownership or possession of the television set, or, in some manner, explain its care or disposition of the claimant’s property once claimant entered the Clinton SHU. It did none of these things.

Defendant’s speculation, raised on cross-examination, that it is possible that claimant’s intended recipient actually received the television set is, in the absence of any evidence, documentary or otherwise, insufficient to rebut the presumption of defendant’s negligence in the unexplained handling or disposition of the television set, particularly in view of the defendant’s otherwise strict rules regarding inmate ownership or possession of a television set.

Accordingly, the defendant is found liable for the loss of claimant’s television set.

Claimant testified that the purchase price of the television set new was $90.00, and that at the time of its loss it was two years old. He seeks the sum of $85.00 in damages for its loss. The Court finds that the fair market value of the television set at the time of its loss was $45.00.

The claimant is awarded damages as follows:

The Court awards claimant the sum of $45.00, with interest from March 15, 2004. Claimant is also awarded, as a taxable disbursement, the actual amount of any fee paid to file the claim, pursuant to Court of Claims Act § 11-a (2).

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.


January 10, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims




[1]. This and other decisions of the Court of Claims may be found at the Court’s website: www.nyscourtofclaims.state.ny.us.