WOLF v. THE STATE OF NEW YORK, #2009-030-003, Claim No. 113217
Former inmate proceeding pro se established bailment claim after trial.
Damages in the amount of $11.31 for stamps. Presumption of negligence not
rebutted given uncontradicted credible testimony of claimant, together with what
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
MARK WOLF, PRO SE
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
March 25, 2009
See also (multicaptioned
a former inmate proceeding pro se,
alleges in this claim that defendant’s agents negligently or intentionally
lost items of his personal property while he was in the custody of the New York
State Department of Correctional Services [DOCS] upon his transfer from Fishkill
Correctional Facility [Fishkill] to Southport Correctional Facility [Southport]
on or about April 21, 2006. More specifically, he asserts that twenty-nine (29)
first class postage stamps never arrived at Southport, and he seeks
reimbursement in the amount of $11.31 for same. Trial of the matter was held on
December 2, 2008.
Claimant testified that he was an inmate in DOCS custody from April 29, 1994
until his release on parole on October 25, 2007. On March 6, 2006 he was
transferred from Gouverneur Correctional Facility to Fishkill, with all his
personal property, including thirty seven (37) first class postage stamps. The
I-64 form for that transfer shows such possession. [See Exhibit 2]. As
indicated in his claim, on April 5, 2006 he purchased an additional fifty (50)
first class 39-cent postage stamps in the Fishkill commissary for $19.50. A
receipt from the commissary confirms such purchase. [Exhibit 3].
Mr. Wolf said that “as of the morning of April 21, 2006, . . . [he]
possessed forty (40) 39-cent first class postage
That morning he was transferred
from Fishkill to Southport.
“Directive 4917”, he said, “sets forth the procedures to be
followed when transferring inmate property.” He asserted that his
personal property was not packed-up and inventoried in accordance with facility
rules, as set forth in DOCS Directive 4917, which was “applicable at the
time.” A copy of Directive 4917, stamped effective on February 10, 2004
and submitted in evidence, is one of the many such directives provided to
inmates through the inmate law library. [See Exhibit 4]. He testified
that this version of Directive 4917, in his experience, was applicable at the
time of this incident. He said he was familiar with the procedure because he
had “prior experience with transfers, prior experience in making an inmate
personal property claim, as well as claims in the Court of Claims.”
Specifically, the property was “not packed up and inventoried in his
presence as required.” Indeed, claimant said he had “five minutes
notice that he was being transferred.” He recalled being awakened at
“five o’clock in the morning, and being told, ‘get dressed,
you’re leaving.’ ” He did as instructed, was escorted out of
the building, placed in handcuffs and placed on the prison van. All of his
property, including the postage stamps, was left behind in the cell. One
regulatory requirement, for example, was that active legal materials be
transferred with him. Mr. Wolf said he had pending lawsuits at the time, and
that all of those materials were left in the cell. No I-64 inventory form was
completed at Fishkill, thus he was transported “without the appropriate
paperwork. All the policies and procedures were ignored.” He was
“not brought to the draft processing room, the property was not laid out
for review and formal inventory, not packed up, sealed and tagged, nor placed on
the bus with . . . [him], and then again reviewed in the draft processing area
of the next facility.”
He arrived at Southport on the same day he was removed from Fishkill: April 21,
2006. “Weeks later,” he received some of the property “in
On May 25, 2006 three (3) bags of property arrived and an inventory was
conducted of these at Southport. [Exhibit 6]. One bag was
“unsealed” when it arrived, as noted on the I-64 form completed at
Southport. [See id.]. Claimant said, “the bags are handled by
numerous people along the way, including inmates.” When he reviewed the
property, only ten (10) first class postage stamps (“and an 11-cent stamp
already affixed to an envelope”) were with his property. Twenty-nine (29)
stamps were missing for a total loss of $11.31.
On June 7, 2006 claimant filed a facility claim for reimbursement for the
postage stamps. [Exhibit 7].
On September 5,
2006 the claim was “disapproved,” because “[n]o evidence
submitted by you to substantiate your claimed loss of stamps.”
]. An appeal was submitted on September 11, 2006, and denied.
Claimant seeks reimbursement for the postage stamps, for the $50.00 filing fee,
and for his photocopying and postage costs related to pursuing this claim.
On cross-examination, claimant acknowledged that he resided in the special
housing unit [SHU] at Fishkill, and that there are limits for inmates in SHU
with regard to the amount of property allowed in their cells. He repeated that
he had possessed 37 stamps initially when he was transferred from Gouverneur to
Fishkill, but did not have a receipt for them. He agreed that he did not
“keep a log of stamps that were used between March 2006 and April
2006,” and noted that he was never asked to dispose of stamps; something
he would have had to do had he had an excess amount in his possession according
to facility rules. Asked about the various legal matters he had pending, and the
cost of mailings for same, he said that such items are processed through the
facility mail room, with deductions for postage taken from his inmate account.
Asked to explain why the I-64 inventory form completed at Southport did not
note receipt of any stamps, and why he signed the form, Mr. Wolf said that he
signed that form as an acknowledgment of what property was received at Southport
in the three (3) bags, some of which would be going to storage (given the
limitations on what property is allowed in SHU).
Shown Exhibit A, claimant identified the document as a list of the property he
was to be allowed in SHU at Southport. He said “It is not a form [Exhibit
A] listing everything that was sent to me from Fishkill.” The limit on
the number of stamps allowed inmates generally, he said, is “$20.00. There
is no greater limit on the number of stamps allowed in SHU. At the time, first
class stamps were worth thirty nine cents each.” The court notes that the
SHU list indicates that claimant had ten (10) stamps in his possession just as
he testified. [Exhibit A].
On redirect testimony claimant said:
“Yes, I have used stamps, and there is no record of stamps I used.
There is no postage scale in your cell. The procedure for mailing big envelopes
out is to fill out a disbursement form, authorizing the mail department to take
the postage required out of the inmate’s account. The amount is left
blank. The mail room then puts the postage on. I had used lots of stamps for
personal correspondence. I had thirty seven stamps when I got there [Fishkill],
I bought fifty, I used some, then twenty nine were lost.”
Photocopies of disbursement request forms and receipts for photocopying related
to pursuit of the claim in this court were submitted to support claimant’s
request for reimbursement for same. [Exhibit 12]. In that regard, recovery of
costs or litigation expenses is not available against the State in the Court of
Claims with limited statutory exceptions. See Court of Claims Act §
27; Russo v State of New York, 50 AD3d 1554 ( 4th Dept 2008), lv
denied 11 NY3d 702 (2008); Gittens v State of New York, 175 AD2d 530,
530-531 (3d Dept 1991).
Interestingly, a memorandum dated May 15, 2006 from the Acting Deputy
Superintendent of Security Services at Fishkill - apparently responding to
claimant’s own inquiries concerning the location of his property - avows
that personnel at Fishkill put his property in tagged draft bag(s) at the time
of transfer, and the property “should have followed
. . . [claimant] to Southport . . .” [see Exhibit 5]. This appears
to highlight some inconsistencies with regard to DOCS’ knowledge about the
location of his property, but is more pertinent here in showing, as he
testified, that the property was left in his cell, packed outside of his
presence, and left the facility in DOCS’ custody. No other witnesses
testified, and no other evidence was submitted.
DISCUSSION AND CONCLUSION
This claim is in the nature of a bailment, whereby negligence by the alleged
bailee in a bailment created between defendant and claimant by delivery of
claimant’s personal property into the custody of defendant’s
employees is alleged. See generally, Claflin v Meyer, 75 NY 260
(1878). The State has a duty to secure an inmate’s personal property.
Pollard v State of New York, 173 AD2d 906 (3d Dept 1991). A delivery of
property to the State, and the failure to return it, satisfies claimant’s
burden of establishing a prima facie case of negligence. The
bailee is then required to come forward with evidence to “overcome the
presumption.” Weinberg v D-M Rest. Corp., 60 AD2d 550 (1st Dept
1977). “Where 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 and the burden shifts to the bailee
to demonstrate that it exercised ordinary care . . . (citation
omitted)” Board of Educ. of Ellenville Cent. School v Herb’s
Dodge Sales & Serv., 79 AD2d 1049,1050 (3d Dept 1981).
Here, the claimant’s testimony concerning his removal from his cell with
the property remaining therein, and his attestations as to what property
remained therein, is uncontradicted, and satisfies the possession and delivery
elements. It is the defendant who had custody and control of whatever property
remained in claimant’s cell, and was responsible for the proper
transmittal of same. Having failed to give claimant all of his property when
demanded, the presumption of negligence arises. On this record, the presumption
of negligence has not been rebutted.
While receipts are the best evidence of fair market value, uncontradicted,
credible, testimony concerning replacement value may also be acceptable,
especially where a large part of the resolution of this claim rests upon the
credibility of the only witness, claimant, and the weight of the evidence
claimant presented to substantiate his claim. Resolving issues of credibility is
the province of this Court as the trier of fact. LeGrand v State of New
York, 195 AD2d 784, 785 (3d Dept 1993), lv denied 82 NY2d 663 (1993).
Certainly the court is not obligated to accept in its entirety the testimonial
evidence offered by one witness alone. See 1A NY PJI3d 1:41, at 55-56
(2006). This is because a court is always required to assess the credibility and
consistency of any witness offered, and has done so in this case.
Upon review of all the evidence, including listening to the claimant testify,
and observing his demeanor as he did so, and the additional documentary proof,
the court finds that claimant has established the elements of his claim, and has
proven damages in the amount of $11.31 for the loss of his postage stamps.
Claimant’s testimony appeared forthright, consistent and credible. Indeed,
his very persistence in pursuing a claim for such a nominal amount, in paying a
full filing fee in this court to obtain redress, and in further pursuing the
claim once he was released from custody and residing in an adjacent state, is
persuasive. Any lack of coherent paperwork is chargeable to the State here,
since completion of I-64 inventory forms is done by its agents, on forms that
vary from facility to facility, but are nonetheless required by facility
regulations. The court also finds it persuasive that property was apparently
packed up outside the presence of the claimant - a fact somewhat confirmed not
just by claimant’s testimony, but also by the May 15, 2006 memorandum from
Fishkill describing what personnel purportedly did with claimant’s
property upon his transfer [Exhibit 5] - leaving what was packed and what was
noted (or not noted) within the exclusive control of the State’s
Based on the foregoing, claimant has established his loss in the amount of
$11.31, and he is hereby awarded damages in the amount of $11.31 plus statutory
interest [State Finance Law §16; Civil Practice Law and Rules § 5004],
which the Court finds presumptively reasonable, from May 25, 2006 to the date of
this Decision, and thereafter to the date of the entry of judgment pursuant to
Civil Practice Law and Rules §§ 5001 and 5002.
It is ordered that to the extent claimant has paid a filing fee, it may be
recovered pursuant to Court of Claims Act § 11-a(2).
Let Judgment be entered accordingly.
March 25, 2009
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
. Claimant legally changed his name from
Matthew Scott Pante to Mark Wolf by Final Judgment of the Superior Court of New
Jersey, Warren County, signed on May 19, 2008 effective June 15, 2008. The claim
caption in this Court was amended to reflect the name change by Order filed on
October 10, 2008.
. All quotations are to audio recordings or
trial notes unless otherwise indicated.
. The facility claim was noted as received in
a memorandum to claimant from K. Baker, Head Account Clerk, dated June 14,
2006. [Exhibit 8]. Claimant wrote to K. Baker enclosing additional
substantiation of his claim. [Exhibit 9]. On June 27, and July 3, 2006, K.
Baker wrote back confirming receipt of the additional information from claimant.