The trial of this pro se inmate claim took place on April 30, 2009. Claimant
alleges in his amended claim that on April 12, 2005 individuals from the Albany
County Sheriff's Department and the Inspector General's Office entered his cell
in the honor block housing unit at Great Meadow Correctional Facility,
confiscated certain property, and failed to return photographs, his General
Equivalency Diploma (GED), high school transcript, and Paralegal/Legal Assistant
Certificate and grade transcripts.
Claimant testified that on April 12, 2005 individuals from the Albany County
Sheriff's Department and the Inspector General's Office searched his cell and
seized his property while he was participating in a work program. Claimant
testified that he was not provided a contraband receipt and that the Albany
County Sheriff's Office turned his property over to the Albany County District
Attorney's office. Claimant's Exhibits 1 through 12 were received in
evidence. Exhibit 6 is a photocopy of a receipt for evidence confiscated from
claimant's cell. To the extent this receipt is legible, it reflects the
following items: 1 blue photo album, 1 drawing, 2 cards and 18 loose
photographs. There is one additional item indicated on this receipt which is
not legible. Exhibit 9 is a copy of the claimant's letter to the commissary
supervisor requesting an estimate for the replacement cost of photographs and
Exhibit 10 is his response indicating that the "price per photo ticket is
The claimant called Correction Officer Leslie E. Perry to the stand. Officer
Perry testified that he has been the Inmate Claims Officer at Great Meadow
Correctional Facility since 2005. Officer Perry identified an Interdepartmental
Communication he prepared on August 11, 2005 (Exhibit A) listing the items
which were returned to the claimant from the Inspector General's Office. This
communication is signed by the claimant and reflects the return of the following
items: 17 loose photographs, 1 calendar, 1 small drawing, 2 greeting cards, 1
photo album with approximately 60 loose photographs missing.
The State as a bailee of an inmate's personal property owes a common-law duty
to secure the property in its possession (Pollard v State of New York,
173 AD2d 906 ; see also 7 NYCRR part 1700). A rebuttable
presumption of negligence arises where it is established that the property was
delivered to the defendant with the understanding that it would be returned, and
that the defendant failed to return the property or returned it in a damaged
condition (Ramirez v City of White Plains, 35 AD3d 698 ; Feuer
Hide & Skin Corp. v Kilmer, 81 AD2d 948 ; Weinberg v D-M Rest.
Corp., 60 AD2d 550 ; see also Claflin v Meyer, 75 NY 260
). Thereafter the burden of coming forward with evidence that the loss
or destruction of the property was not its fault is upon the defendant (Feuer
Hide & Skin Corp. v Kilmer, supra; Board of Educ. of
Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049
; Weinberg v D-M Rest. Corp., supra ).
A comparison of Exhibit 6, listing the items taken from the claimant's cell,
with Exhibit A, listing the items returned to the claimant, indicates that only
60 loose photographs were confiscated and not returned to the claimant. The
Court also credits the claimant's testimony that his photo album was returned in
a damaged condition. The Court does not, however, credit the claimant's
testimony that Exhibit 6 does not reflect all of the personal property taken
from his cell. No proof was presented that the claimant's GED diploma or school
transcripts and certificates were taken. Accordingly, no award is made for the
replacement cost of these items.
The Court finds the uncontradicted proof of the replacement cost of the
photographs fair and reasonable and awards the claimant $90 for the cost of
replacing the missing photographs. The Court also awards the claimant $3
claimed for the damage to his photo album.
Based on the foregoing, the Court hereby awards total damages to the claimant
of $93.00 plus interest at the statutory rate from August 11, 2005 (CPLR 5001
[a] and [b]).
To the extent the claimant has paid a filing fee, it may be recovered pursuant
to Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.