Claimant, an inmate proceeding pro se, was awarded a sum of $100.78 in this bailment claim, together with interest from the date of accrual of this claim.
|Claimant short name:||WOLF|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||MARK WOLF, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Bonnie G. Levy, Esq.,
Assistant Attorney General,
|Third-party defendant's attorney:|
|Signature date:||November 23, 2009|
|See also (multicaptioned case)|
In this claim, claimant Mark Wolf(1) , a former inmate proceeding pro se, seeks damages in the amount of $100.78 for the loss of certain items of his personal property allegedly occurring while he was in the custody of the New York State Department of Correctional Services (DOCS). Specifically, claimant alleges that these items of personal property were lost or misplaced by DOCS in February, 2005, when claimant was transferred from Cayuga Correctional Facility to Gouverneur Correctional Facility.
Claimant was the only witness to testify at this trial, and he also introduced several documents in support of his claim. Defendant did not call any witnesses at trial, but introduced certain documents which were received into evidence at trial in defense of this claim.
As testified to by claimant, and as reflected in the documentary evidence, claimant's items of personal property were packed and inventoried on two separate occasions at Cayuga Correctional Facility, on February 18, 2005 and February 24, 2005 (see "Personal Property Transferred" Forms [I-64], Exhibits 5 and 6). On the first occasion, claimant apparently was being transferred to the Special Housing Unit (SHU) at Cayuga Correctional Facility and on the second date, claimant was in the process of being transferred to another facility. Claimant acknowledged at trial that these forms do not completely and accurately portray the specific items alleged to have been lost, which are instead set forth on claimant's administrative "Inmate Claim Form" (Exhibit 9). Claimant testified at trial that the lack of complete documentation for his claim resulted from the fact that he had been repeatedly transferred from one facility to another, without always having the opportunity to inspect, secure and pack all of his items of personal property. He further testified that his property was often secured, inventoried, and packed outside of his presence.
Under cross-examination, claimant was questioned as to the specific items set forth on his administrative claim, as well as the method by which he established present market value for those items.
As a bailee of property, the State has a duty to secure an inmate's personal property, and therefore an inmate may assert a negligence claim against the State sounding in bailment (Pollard v State of New York, 173 AD2d 906). In order to establish a prima facie case of negligence, a claimant must establish that the property was delivered to the defendant, and that the defendant failed to return it, or returned it in a damaged condition (Weinberg v D-M Rest. Corp., 60 AD2d 550). The defendant's refusal or inability to return the bailed items on demand creates a presumption of negligence, and the burden shifts to the defendant, which must then come forward with proof to overcome this presumption (Weinberg v D-M Rest. Corp., supra; Alston v State of New York, 9 Misc 3d 1126[a]).
In this particular matter, the Court found claimant to be a most credible witness, and his testimony, together with his documentary evidence, establishes to the satisfaction of this Court that claimant owned the missing items of property at the time of his transfer from Cayuga Correctional Facility. Defendant, therefore, having custody and control of claimant's personal property, was responsible for the proper return of such property when claimant eventually arrived at Gouverneur Correctional Facility. Defendant has offered no explanation for its failure to return these items to claimant, and therefore has failed to rebut the presumption of negligence. Accordingly, the Court finds that defendant is liable for the loss of claimant's personal property.
With respect to value, claimant has the burden to satisfy the Court as to the fair market value of the items in question (Phillips v Catania, 155 AD2d 866; Schaffner v Pierce, 75 Misc 2d 21). Fair market value is determined by taking the value of the original purchase price, and applying a reasonable rate of depreciation (Phillips v Catania, supra).
Receipts are obviously the best evidence of fair market value. The Court acknowledges, however, that receipts are not always available to establish fair market value, especially in claims involving inmates, who do not have the right to maintain continuous control over their possessions, including relevant papers and documents. As a result, the Court must often rely upon testimony from the claimant to establish fair market value. In this particular matter, as previously indicated, the Court found claimant to be a most credible witness. Based upon his testimony, and the documentary evidence provided (see particularly Exhibit 9), the Court finds that claimant has established the loss of those items set forth in his administrative "Inmate Claim Form" and that the values set forth therein for original costs, and the depreciation applied, are fair and reasonable.
Based upon the foregoing, this Court finds that claimant has established his loss in the amount of $100.78, and he is hereby awarded damages in this amount.
Pursuant to Court of Claims § 19(1), if a claim which bears interest (such as the claim herein) is not filed within six months after accrual, interest is suspended from the expiration of the six-month period until the claim is filed. The Legislature, however, has since enacted specific provisions pertaining to inmate personal property claims (Court of Claims Act § 10). Under § 10(9), an inmate is not permitted to file a bailment claim until he or she exhausts a personal property claim administrative remedy. After that procedure is completed, an inmate then has 120 days to serve and file his or her bailment claim in the Court of Claims. As a result, an inmate only has an approximate four-month window in which to bring a bailment claim.(2) Based on these somewhat inconsistent provisions, and taking into consideration the relatively brief period of time in which an inmate may properly institute a claim, this Court does not believe that the Legislature intended that the suspension of interest provisions (§ 19) would apply to inmate bailment claims brought under § 10(9). Accordingly, this Court finds that it would be unduly harsh to suspend interest for any period of time, even though the bailment claim may have possibly accrued more than six months prior to the filing of the claim (Gagne v State of New York, 14 Misc 3d 1214[A]). Claimant is therefore awarded statutory interest from February 25, 2005 to the date of this decision, and thereafter to the date of entry of judgment herein. Although there is no basis on which to award claimant the cost of postage ($3.09, presumably required for the service and filing of the claim herein), claimant is entitled to recover the amount of his filing fee pursuant to Court of Claims Act § 11-a (2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
November 23, 2009
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
1. This claim was originally filed under the name of Matthew Pante. The Court has been advised, prior to trial, that claimant legally changed his name from Matthew Pante to Mark Wolf, and the caption of this claim has previously been amended to reflect this name change.
2. The Court notes that the late claim provisions of Court of Claims Act § 10(6) are not applicable to claims brought pursuant to § 10(9) (Roberts v State of New York, 11 AD3d 1064[A]).