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].
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
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
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
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
Having failed to avail himself of a remedy about which he was thoroughly
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
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.