Claimant, an inmate appearing pro se, alleges that defendant State of New York
(defendant) negligently lost certain personal property belonging to him when he
was transferred from the general population area at Elmira Correctional Facility
(Elmira) to the Special Housing Unit (SHU) on December 1, 2004. A trial in this
matter was conducted by video conference on November 28, 2007, with the parties
appearing at Elmira, and the Court sitting in Binghamton, New York.
At trial, claimant testified that he was removed from his cell and sent to SHU
on December 1, 2004, following an altercation in which he participated. His
property remained in his cell at the time of his transfer, and was transferred
to SHU two days later. Claimant said that when he went to the SHU intake area
to receive his property, he noticed that he was missing certain books, as well
as some other property. He informed a correction officer of this, who advised
him that there were two other bags containing his property somewhere in the
facility. Those two bags were eventually located. However, in the meantime
claimant had been transferred to Southport Correctional Facility (Southport).
He received three bags of his property at Southport on February 16, 2005, and
two more bags on March 5, 2005.
While he was still at Elmira, claimant filed an Inmate Claim Form dated
December 30, 2004 (the first Inmate Claim Form) for four missing books. The
first Inmate Claim Form was denied “based on area Sergeant's
investigation,” and his appeal of the denial was also disapproved without
further explanation, despite claimant's notation on the appeal form that he was
given no explanation for the initial denial. The date of the denial of the
appeal was March 28, 2005.
After receiving his final two bags of property at Southport, claimant filed
another Inmate Claim Form on March 15, 2005 (the second Inmate Claim Form). The
second Inmate Claim Form was denied, with the explanation “[i]nvestigation
shows that you received the claimed books in your late property. No loss has
occurred” (Claimant's Exhibit 1). Claimant's appeal of this determination
was also denied, despite his statement in the appeal that the I-64 form listing
the contents of his bags when they arrived at Southport contained no reference
to the books. The two I-64 forms listing the contents of those bags were
introduced by claimant at trial (Claimant's Exhibits 4 and 5). Only one book is
referenced on those forms as being included in his property, and no mention is
made of the title of the book. Claimant also introduced copies of his receipts
for the books at trial (Claimant's Exhibit 8).
Claimant rested his case at the close of his testimony. Defendant called no
witnesses. However, when claimant rested, counsel for defendant, Assistant
Attorney General (AAG) Roberto Barbosa, made a motion to dismiss the claim. AAG
Barbosa stated that the basis for the motion was that “the State failed to
follow its own rules and procedures with regard to the processing of inmate
explained that claimant's filing of the second Inmate Claim Form, at Southport,
on March 15, 2005, occurred 10 days after the arrival of his second bag at
Southport. He contended that defendant should have denied the claim as being
untimely pursuant to 7 NYCRR 1700.4 (a),
that “it was only through defendant's omission that this institutional
claim was allowed to go forward.”
In response to this rather interesting motion, claimant noted that, when he
ascertained with finality that the books were missing (when he received the last
two bags on March 5, 2005), his appeal of the denial of the first Inmate Claim
Form was still pending (as previously noted, the appeal was not denied until
March 28, 2005). Moreover, claimant wrote a letter to the Superintendent at
Elmira on March 13, 2005, inquiring as to the status of the appeal. Under these
extenuating circumstances, the Court finds that the minimally late filing of the
second Inmate Claim Form was excused. Defendant's motion to dismiss (upon which
the Court reserved decision at trial) is therefore denied.
A bailment is created when personal property is delivered into the hands of
another, who is then expected to return it in the same condition on demand
(Claflin v Meyer, 75 NY 260, 262 ). Defendant has an obligation to
secure an inmate's personal property (Pollard v State of New York, 173
AD2d 906 ). Once a claimant meets the burden of proving that his property
was deposited with the defendant and that the latter failed to return it, the
burden shifts to the defendant to overcome the presumption of its negligence
(Weinberg v D-M Rest. Corp., 60 AD2d 550 ).
Even when there is no formal transfer of property, a bailment is still implied
when one comes into lawful possession of the property of another (Mack v
Davidson, 55 AD2d 1027 ). “The determination as to whether the
relationship is one of bailor and bailee turns on whether there is a
relinquishment of exclusive possession, control and dominion over the
property” (Alston v State of New York, Ct Cl, Aug. 19, 2005,
Schweitzer, J., Claim No. 108146 [UID # 2005-036-500]). When claimant was taken
from his cell in general population to SHU and left his property behind, he
clearly relinquished to defendant exclusive possession, control, and dominion
over his property. Claimant has proven through a preponderance of the credible
evidence (that being his receipts for the books, the I-64 forms and his
credible, uncontroverted testimony) that he was originally in possession of the
four books, and moreover that those books did not follow him in his property
bags when he was transferred to Southport.
The measure of recovery when bailed property is not produced upon demand is the
fair market value of the property, that is, the value of the original purchase
price less a reasonable rate of depreciation (Phillips v Catania, 155
AD2d 866 ). Receipts, which are the best evidence of fair market value,
established that all four of the books were less than one year old when claimant
was transferred to SHU. Accordingly, the Court will not apply depreciation in
its consideration of claimant's damages (see Schaffner v Pierce, 75 Misc
2d 21 ). Claimant's receipts for the missing books establish the total
loss at $112.80.
At trial, claimant also requested fees, costs and disbursements. However, such
relief is precluded by the provisions of Court of Claims Act § 27, and
claimant's request is consequently denied.
Claimant is hereby awarded damages in the amount of $112.80, plus the
appropriate statutory interest from March 5, 2005. Any and all motions on which
the Court may have previously reserved or which were not previously determined,
are hereby denied. Finally, to the extent that claimant has paid a filing fee,
it may be recovered pursuant to Court of Claims Act
§ 11-a (2).
Let judgment be entered accordingly.