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
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.
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
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
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.