New York State Court of Claims

New York State Court of Claims

FELIX v. THE STATE OF NEW YORK, #2009-030-006, Claim No. 112060


Synopsis


Bailment claim dismissed after trial. Did not establish exhaustion of administrative remedies via inmate personal property claims procedure, a procedure with which claimant very familiar. Claim asserted that correctional facility lost laundry. Grievance filed and determined included a direction that claimant should file an inmate personal property claim. Rather than do so, claimant served and filed claim in this court. Explanations not credible

Case Information

UID:
2009-030-006
Claimant(s):
DONALD FELIX
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
FELIX
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):
112060
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
DONALD FELIX, 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 13, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Donald Felix alleges in his claim that defendant’s agents negligently lost his property while he was an inmate incarcerated at Green Haven Correctional Facility. More specifically, he alleges that on or about December 29, 2005 he sent his dirty laundry to the facility laundry and it was never returned. Trial of the matter was held on January 23, 2009.


At trial, claimant explained the procedure for obtaining laundry services at Green Haven. He said dirty laundry is placed in a net bag, and an itemized laundry list form detailing exactly what items are contained therein is attached. [Exhibit 1].[2] The laundry list form he identified as the one he utilized on this occasion is stamped “received” on December 29, 2005, with no indication of who, exactly, “received” this list. [Ibid.]. The normal procedure, he said, is that the laundry bag is “returned outside your cell.”[3] At “around 4:00 p.m. that day” he realized that his laundry had not been returned. He spoke to the laundry runner and the company porter, and a search was conducted, but there was no sign of his laundry bag. He “filed a grievance” the following day. [Exhibit 2].

In the grievance document Mr. Felix identified, there is included a notation that an “[inmate personal property] claim has been filed with this grievance, see attached.” [Ibid.]. No copy of the inmate personal property facility claim Mr. Felix testified was filed simultaneously is included in the exhibit submitted. [Ibid.]. The grievance seeks reimbursement in the amount of $197.60. [Ibid.].

The initial Inmate Grievance Resolution Committee [IGRC] decision, dated February 2, 2006, indicates that if the bag was lost, the claimant should be reimbursed. [Exhibit 2]. There is no mention of a personal property claim being filed simultaneously. [Ibid.]. The decision on the Superintendent’s appeal, issued February 15, 2006, indicates: “Remedy requested is not within the purview of the IGP. Grievant should have filed a personal property claim.” [Ibid.]. Finally, the State Central Office Review Committee [CORC] decision, dated April 5, 2006, and upholding the Superintendent’s determination indicates: “CORC notes from further investigation that there is no record of the grievant filing a claim for missing laundry. The grievant has the right to proceed with a claim for any lost or stolen items in accordance with Directive #2733 INMATE PERSONAL PROPERTY CLAIM.” [Ibid.].

Mr. Felix testified on direct testimony that he then served this claim in the Court of Claims within 120 days of exhaustion of his administrative remedies, that is, after the grievance determination.

To show that the laundry indicated on the laundry list was not returned, Mr. Felix noted that the form was not signed by the company porter or the laundry runner. [Exhibit 1]. The procedure was, he said, that the runner would sign the form when the property was returned to the unit, and the porter would sign the form acknowledging receipt. “The loss claimed is $213.60, a depreciated value, since I used the items before the loss,” he said.

Mr. Felix said he did not have any receipts for the lost laundry. “Those would be in my package room file” he said, “and my FOIL request for my package room file was denied.” Claimant did not produce any correspondence or other information about the denied FOIL request.

On cross-examination, when asked about the discrepancy between the amount of reimbursement sought in his grievance ($197.60), and the damages sought in this court ($213.60) Mr. Felix explained that he miscalculated when he wrote the figure for the grievance, and when he added up the numbers for the reimbursement sought here he saw he was “off by $16.00.” Claimant acknowledged that the superintendent’s decision on the grievance told him to file an inmate personal property facility claim, and acknowledged that he was familiar with the personal property claim procedure. Indeed, when shown Directive 2733 (Inmate Personal Property claim), he expressed himself familiar generally with such directive. [See Exhibit A].

When asked whether he could have proceeded with both the grievance and a personal property claim he agreed that he could have, and, indeed, avowed he did file an inmate personal property facility claim. He said, however, that he did not have a copy of such facility claim. He said he did not make a copy of the facility claim himself, and that the only reason he had a copy of the grievance form was that it is “completed in triplicate,” thus he had an additional copy. As proof that he filed a facility claim relative to this property, he said that the facility claim was given the number 080-9379-06 and offered a memorandum dated February 15, 2006 from the deputy superintendent to claimant which, in addition to referencing the aforementioned claim number, states as follows:
“I am in receipt of your correspondence concerning the above referenced claim. Kindly be advised that it is currently being investigated, and as soon as all information is available, you will be hearing from me. If you have any questions concerning Inmate Claims procedure, please refer to Albany Directive #2733. This is available in the Law Library for your perusal.” [Exhibit 3].


He testified he never received a response (except for this memorandum) after filing his facility claim. Notably, there is no indication of the nature of the facility claim referred to in this memorandum [Exhibit 3]. Mr. Felix also indicated that it was his understanding that exhausting his administrative remedies for the purpose of filing a claim in the Court of Claims involved the grievance process, not the personal property remedy.

When asked why he did not follow up with his facility claim, he explained that in 2002 he had experienced a similar incident, where his laundry was not returned, and had filed a facility claim. Mr. Felix submitted a copy of this 2002 facility claim. [Exhibit 4]. In the disapproval of that earlier claim, it is noted that the “claim not covered under directive #2733.” [Ibid.]. It is also noted, however, that “evidence indicates that the facility was not at fault or in any way responsible for the loss or damage,” [Ibid.] making such disapproval more equivocal than claimant would argue. Claimant insisted that the reason that he did not pursue the facility claim with respect to the present matter, was that he “did not want to play this game with Green Haven” and repeated that with regard to exhaustion of administrative remedies prior to filing in the Court of Claims, only the grievance process was necessary.

When queried further about the pursuit of the facility claim, he could offer no explanation as to why a facility claim purportedly filed simultaneously with the grievance on December 30, 2005, was given a 2006 identification number (according to the memorandum submitted as Exhibit 3). He also conceded that he did pursue the facility claim further (to some extent) in that this same memorandum dated February 15, 2006 appears to be acknowledging that it is in response to a query by Mr. Felix as to the status of his facility claim, yet he did not have a copy of the correspondence he sent.

Mr. Felix agreed that the final decision from CORC was dated April 5, 2006. [Exhibit 2]. He also agreed that his claim in this court served on defendant on February 21, 2006, as shown on the green card stamped by the attorney general’s office. [Exhibit 5]. The claim was filed in the Court of Claims on March 8, 2006. [See Claim Number 112060]. Nonetheless, he would not agree that he therefore served and filed his claim in this court before even that administrative remedy - the grievance process he asserted on direct testimony as the process that needed exhausting prior to commencement of a claim in the Court of Claims - had been exhausted. Mr. Felix said: “yes, it was exhausted, I had already appealed to the superintendent, and was free to file in the Court of Claims.”

No other witnesses testified and no other evidence was submitted.

This claim is treated as one alleging negligence by the alleged bailee in a bailment (or implied bailment) created between defendant and claimant by delivery of personal property intended for claimant into the custody of defendant’s employees. A delivery of property to the defendant’s employees, and the failure to return it to claimant, would satisfy claimant’s burden of establishing a prima facie case of negligence, shifting the burden to the defendant to show that it exercised ordinary care in securing claimant’s property.

More significantly here, however, Court of Claims Act §10(9) provides that an inmate in the custody of the New York State Department of Correctional Services [DOCS] who seeks damages for the alleged loss of personal property “may not” file such a claim in this court

“. . . unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.” See 7 NYCRR Part 1700. This is a condition precedent to suit and, even if defendant does not raise the matter until the time of trial, the defense is not waived. See e.g. Williams v State of New York, 38 AD3d 646 (2d Dept 2007). The claim accrues when the inmate receives the final determination concerning his personal property administrative claim. See Blanche v State of New York, 17 AD3d 1069 (4th Dept 2005).

A large part of the resolution of this claim rests upon the credibility of the claimant, and the weight of the evidence he 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). An important part of that role is observing the behavior and demeanor of witnesses as they testify, assessing the internal consistency of their accounts, and the court is never bound to credit a particular fact. Indeed, “. . . ‘[i]f everything or anything had to be believed in court simply because there is no witness to contradict it, the administration of justice would be a pitiable affair’ (Punsky v City of New York, 129 App Div 558, 559; Matter of Nowakowski, 2 NY2d 618).” Brennan v Bauman & Sons Buses, 107 AD2d 654, 655 (2d Dept 1985); accord, Lucks v Lakeside Mfg., Inc., 37 AD3d 666 (2d Dept 2007); see 1A NY PJI3d 1:41, at 55-56 (2006). In this case, the only witness to testify concerning the incident was Mr. Felix. Certainly the court is not obligated to accept his testimony, because a court is always required to assess the credibility and consistency of any witness offered, and has done so in this case. The testimony about this claim by the claimant, who impressed the court as an intelligent and resourceful individual, capable of “punting” when necessary, was simply not credible when measured against the lack of documentary proof that any facility claim was ever filed with regard to this particular property loss.

Having failed to avail himself of a remedy about which he was thoroughly familiar,[4] he did not satisfy the required condition to bringing a claim in this court that he exhaust the applicable administrative remedy, nor did he establish that some exception to such condition recognized on a case-by-case basis in this court be applied. See e.g., Gagne v State of New York, 2006 NY Slip Op 52530 (U) (Ct Cl 2006).[5]

Moreover, even if the claim were to be considered on the merits, claimant did not establish all the elements of a bailment claim, including the fair market value of any of the items claimed lost either through the production of receipts, or through sworn testimony as to replacement value.

Based on the foregoing, claim number 112060 is in all respects dismissed.

Let judgment be entered accordingly.

March 13, 2009
White Plains, New York

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




[2]. Items he testified about and that were listed on this form are two (2) burgundy sheets, one (1) burgundy pillowcase, three (3) burgundy towels, one (1) yellow sweatshirt, one (1) yellow sweatpants, four (4) t-shirts (2 burgundy; 2 yellow); 7 personal undershorts (not state issue); 24 socks, one (1) white net laundry bag (purchased from the commissary). [see Exhibit 1].
[3]. Quotations are to trial notes or audio recordings unless otherwise indicated.
[4].Indeed, this Court heard an earlier successful bailment claim brought by Mr. Felix in April 2004. Felix v State of New York, UID # 2004-030-018, Claim No. 107522 (Scuccimarra, J., June 28, 2004).
[5]. When an inmate personal property claim is not timely decided - or indeed ever decided - there does come a point that a claimant can be deemed to have satisfied an exhaustion requirement.