New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2009-030-004, Claim No. 112460


Synopsis


Pro se inmate establishes bailment claim after trial. Facility acknowledged some responsibility; some receipts furnished, credible testimony closed gaps

Case Information

UID:
2009-030-004
Claimant(s):
ISRAEL RODRIGUEZ
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
RODRIGUEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112460
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ISRAEL RODRIGUEZ, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
March 10, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Israel Rodriguez alleges correctional personnel negligently or intentionally lost his personal property upon his transfer from Green Haven Correctional Facility [Green Haven] to Upstate Correctional Facility [Upstate] in or about October 2005. Trial of the matter was held on January 23, 2009.


At the trial, Mr. Rodriguez essentially testified as written in his claim, that although twelve (12) bags of property had been packed up at Green Haven, only ten (10) arrived. He filed a claim for his personal property seeking total reimbursement in the amount of $495.50, but was only offered $44.35 in settlement, which he would not accept. [Exhibit 3].

Items listed on the facility claim form, for which he seeks recovery in this court, and which he asserts were all new (or less than one year old) at the time of the loss include: one (1) Seiko watch valued at $49.99; Timberland boots ($50.00); five (5) belts ($50.00); bermuda shorts ($80.00); three (3) sweaters ($60.00); seven (7) shirts ($100.00); five (5) packs of Newport cigarettes ($22.50); nine (9) winter hats ($27.00); two (2) blankets ($40.00); and baseball caps ($16.00). [Exhibit 3]. As noted, the facility claim was “approved in part.” [Ibid.]. The $44.35 offered represented reimbursement for “watch, boots, 9 hats, 1 cigarettes, [and] 3 sweaters,” and was made because “per . . . [Green Haven], 6 bags shipped in 5 boxes. Shorts, shirts, blankets, caps accounted for on I-64’s. Offer made per valuation/depreciation guide.” [Ibid.].

Claimant submitted a local permit for the watch, dated July 23, 2004, noting the value as $49.99. [Exhibit 1]. Claimant indicated he had tried to obtain copies of receipts from the package room, but was only provided with some of the items requested. Two receipts from Bust the Move of New York, Inc., dated May 12, 2003 and June 8, 2001 represent, he testified, receipts for one (1) Hanes t-shirt for $7.00, and three (3) baseball caps for $4.00 each. [Exhibit 1]. An additional receipt from Jack L. Marcus, Inc., dated March 23, 2000, lists additional t-shirts: one (1) brown t-shirt for $4.75, one Best t-shirt for $4.25, and one Hanes three-pack of t-shirts for $7.50. [Ibid.]. Although he submitted an additional receipt for jersey active shorts and tank tops, he was not sure if these represented the bermuda shorts he claims. [Exhibit 2].

Before his transfer to Upstate, Mr. Rodriguez was apparently in the special housing unit [SHU] at Green Haven. His property had been packed up for that transfer within Green Haven, apparently on or about July 17, 2005. [Exhibit 3]. The July 17, 2005, I-64 inventory form notes eleven (11) bags worth of property were packed at that time. [Ibid.]. When he was transferred to Upstate, four (4) bags came with him “on the bus”,[2] as well as what he called his “in-cell bag,” packed up from his cell in SHU. The in-cell bag included his “basic toiletries and greens”. Excess bags are shipped at the inmate’s expense. He said he was charged for shipping five (5) bags, as shown on the inmate disbursement form dated October 11, 2005. [See Exhibit 3]. By his calculation, a total of twelve (12) bags should have arrived at Upstate: the eleven bags originally packed up and tagged when he went into SHU, and the twelfth in-cell bag. Instead, only a total of ten (10) bags arrived, he said.

When comparing the indication of five (5) bags being shipped at his expense on the disbursement form to the I-64 inventory form tag numbers “it doesn’t make sense,” in that he paid for shipping eight (8) bags, and four (4) bags came with him on the bus. [Exhibit 3]. There are eleven bags noted on the I-64 form as being packed, and eleven tag numbers are noted as well. [Ibid.]. An I-64 inventory form dated October (no date) 2005 from Upstate, represents, he said, the property received at Upstate. [Ibid.].

The July 17, 2005 I-64 form also indicates “property sent to draft processing 10/10/05.” [Ibid.]. Mr. Rodriguez said that the procedure at Upstate was to “go through all your property again. They take the Green Haven tags, dump all the property from Green Haven out, take the tags and then repack them.” Seal numbers are shown in the upper right hand corner of the form and the form does not make any reference to the eleven tag numbers on the July form. [Ibid.]. Presumably, it would be logical that whoever noted on the July 17, 2005 I-64 form that the property was received at Upstate, and then further noted that it was sent to draft processing, would have counted the eleven (11) tag numbers and confirmed that eleven (11) bags were there or otherwise accounted for. Mr. Rodriguez testified that as an SHU inmate at Upstate, he would not see his property right away, and learned later that bags did not arrive.

On cross-examination, claimant conceded he did not submit the receipts to the facility in support of his institutional claim, explaining he did not have them at the time. He was still in the process of requesting them. He said: “the receipts for all the things I am missing I don’t really have.” The receipts submitted are representative. He said: “the package room would not - or could not - give them to me. The missing items - some I purchased, some were brought in by family members, the shirts and my hats. I ordered the baseball caps. Some of the copies of receipts are for items that were rejected by the package room - my family brought me a lot of boots.”

Mr. Rodriguez agreed that the I-64 inventory form makes a distinction between t-shirts and regular shirts. He agreed that the July 2005 I-64 form, lists 14 t-shirts, and 19 regular shirts. [See Exhibit 3]. He further agreed that on his facility claim he listed 7 shirts as missing, and valued them at $100.00, yet the only receipts provided are for t-shirts worth perhaps $30.00 total. [See Exhibits 1 and 2]. Mr. Rodriguez explained that the receipts submitted in evidence were “not for the shirts claimed lost,” but ultimately conceded that other than the permit for the Seiko watch, and baseball caps, he had no proof of value for items listed on the inmate claim form, but insisted that the reason he lacked such proof was that he was unable to obtain the documentation from the package room.

With regard to the unspecified number of baseball caps listed as missing on the facility form, he said that the facility claim form does not require the claimant to list how many of any given items are missing, but according to the value he wrote down, “it’s four caps” that were missing at $4.00 each. He agreed that the invoice he provided is dated 2001, but nonetheless insisted that the caps were new. Mr. Rodriguez explained: “I keep them in plastic. I keep so many clothes in my cell that I am getting in trouble with the facility.” When asked about the bermuda shorts listed on the facility claim and valued at $80.00 he explained that the loss was four pairs of shorts, not one pair. In terms of receipts, he was not certain that the receipts submitted - including 1998 receipts from Attica Correctional Facility - reflected the bermuda shorts.

No other witnesses testified and no other evidence was submitted.

This claim is one alleging 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. 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 defendant’s employees, and the failure to return it to claimant, satisfies claimant’s burden of establishing a prima facie case of negligence. The State 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). With respect to value, Claimant must satisfy the court of the fair market value of the items in question. While receipts are the best evidence of fair market value, uncontradicted testimony concerning replacement value may also be acceptable, or other indicia of value such as uncontradicted sworn statements.

From the court’s review of the two I-64 forms filled out by correctional personnel - the first completed at Green Haven, and the second completed at Upstate - as well as the facility claim form and determination, the representative receipts submitted, including the facility permit for the watch, and claimant’s testimony, claimant has established that the State took possession and control of certain items of claimant’s personal property, and failed to return them, as defendant conceded in finding that claimant had sustained a loss at the facility claim level. These items include five (5) belts, one (1) pair of boots, nine (9) hats, seven (7) shirts, three (3) sweaters, two (2) blankets, five (5) packs of cigarettes, two (2) baseball caps, four (4) pairs of bermuda shorts, and one (1) Seiko watch. Claimant has not been able to furnish receipts for most of the items, but was able to close the gap by his testimony coupled with receipts representing replacement value, or admissions of loss by the State as set forth on the sworn facility claim form, with respect to some items to establish the fair market value. To his credit, and in his obvious confusion during cross-examination, claimant undercut some of the values he had written down on his sworn facility claim by saying that he did not really know the values.

Nonetheless, and based on the foregoing record including the facility’s acknowledgment of responsibility, claimant has established his loss in the amount of $210.00, and is hereby awarded damages in that amount plus statutory interest [§16 State Finance Law; § 5004 Civil Practice Law and Rules], which the Court finds presumptively reasonable, from the date of accrual of January 12, 2006 to the date of this Decision, and thereafter to the date of the entry of judgment pursuant to §§ 5001 and 5002 Civil Practice Law and Rules.

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 10, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[2].Quotations are to trial notes or audio recordings unless otherwise indicated.