Hector Figueroa alleges in his claim that defendant’s agents at Green
Haven Correctional Facility [Green Haven] and/or Downstate Correctional Facility
[Downstate] negligently lost his personal property during his movement for a
court appearance in June 2006, when they gave his property to an inmate with the
same last name, Jamie Figueroa. [Claim No. 113466, filed March 19, 2007]. He
asserts that when he arrived at a New York City jail facility, he noticed that
his property bag was missing, and began the process of trying to ascertain where
in the process his property may have been mislaid. [Id. ¶¶12,
13, 14, 15]. He wrote to Downstate, receiving no response. [Id.
¶¶ 13,14,15; Exhibit B]. He was transported back to Green Haven in
October 2006, stopping again at Downstate on the way there. [Id.
On November 1, 2006 he received a copy of the original I-64 form that the
correction officer had completed when claimant was packed up for his initial
court appearance in June 2006. [Id. ¶18; Exhibit A]. It was then he
first became aware that his bag had been given to a different inmate.
[Id. ¶18]. He submitted a facility personal property claims form on
November 3, 2006. [Id. ¶20; Exhibit C].
On January 12, 2007 his appeal to the superintendent was disapproved. [See
id.¶ 21, Exhibit C].
According to an affidavit of service attached to the claim filed in this court,
the present claim was served on the Attorney General’s Office on or about
March 15, 2007 by certified mail, return receipt requested. [Id.]. The
court determined in prior motion practice that no answer was interposed.
[See Figueroa v State of New York, UID # 2008-030-546, Claim No.
113466, Motion No. M-75099 (Scuccimarra J., August 6, 2008)].
Trial of the matter was held on February 20, 2009.
Claimant testified essentially as indicated in his filed claim. He added that
he had been serving a one-year sentence in the special housing unit [SHU] in
Green Haven when Officer Hoiston came to “pack up his cell for a court
proceeding at the New York City Detention Center at Rikers” on June 13,
2006. The officer packed the property - including property needed for the court
appearance - and an I-64 inventory form was completed. [Exhibit 3]. He never
saw the property again. On June 14, 2006 Mr. Figueroa was escorted from SHU to
the administration corridor for processing to leave for Downstate. At Downstate,
he was placed in a “separate bull pen” because he was a SHU inmate,
given state-issued clothing, and put on the New York City Correctional Services
bus. When he arrived at Rikers, he could see his property bag was not in the
van. He wrote to Downstate in June, July and early October 2006 to try to
ascertain what happened to his property, receiving no response.
“Four months later”, on October 25, 2006, he came back into DOCS
custody. He arrived again at Downstate, and then went to Green Haven the next
day. On November 1, 2006, he was given the I-64 inventory form, which showed
that it had been signed by a “Jamie Figueroa” as receiving property
on or about June 18 or 28 [the day is illegible], 2006 at Downstate. [Exhibit
3]. His facility claim - attached to the claim he filed in this court - was
denied in December 2006. The reason for the disapproval noted is as
“Other inmate was never at Downstate CF. Inmate sign for wedding ring
and religious medal (I-64) no reference to 1332 pages legal
The personal property claim was also disapproved by the superintendent, without
any explanatory comment, on January 12, 2007.
Notably, personnel at Green Haven acknowledged in a writing dated December 27,
2006 that the June 13, 2006 I-64 form notes the 1332 pages of trial transcripts
on the inventory list, in a memorandum apparently responding to claimant’s
own letter. [See Exhibit 2]. Nonetheless, the claim was disapproved.
There is no indication of what efforts were made to ascertain the whereabouts of
the other inmate. Claimant maintained throughout the administrative process, and
before this court, that he did not sign for the receipt of his property in June
2006 - indeed, he was in the custody of the New York City Department of
Corrections until October 2006 - and has yet to receive any of the
Claimant argued that personnel did not follow DOCS Directives 4913 and 4917
setting forth the guidelines for processing property. [Exhibits 11 and 12]. He
asserted that the facility is required to make sure the correct person is
signing for property (at a minimum), and they did not.
The following is the personal property that he claims was lost and that is
noted on the I-64, and the values asserted therefor: 1332 trial transcript pages
($6,993.00); one (1) wedding band ($149.99); one (1) watch ($49.99); one (1)
religious medal with chain ($50.00); two (2) pairs of sneakers ($49.99 each;
$99.98 total); eleven (11) bar soaps ($.79 each; $8.60 total); one (1)
toothpaste ($1.96); seven (7) shampoos ($3.50 each; $24.50); four (4) lotions
($3.50 each; $14.50); five (5) body lotions ($3.50 each; $17.50); fifty (50)
stamps ($.39 each, $19.50); and five (5) deodorant sticks ($1.34 each; $6.70).
[See Claim No. 113466 and Exhibit 3]. He also seeks reimbursement for the
cost of photocopying and certified postage in pursuit of this claim, and
produced a series of facility disbursement request forms and mail receipts in
this effort. [See Exhibit 10].
In terms of actual receipts for the claimed items, claimant could not furnish
much. For example, he provided facility permits for his wedding band [Exhibit
5], his watch [Exhibit 6], and his religious cross and chain [Exhibit 7], all
dated 2002, but conceded that the values indicated thereon were based on the
limitations imposed by facility regulations on the value of property inmates
were allowed to possess. He testified, however, that although his wedding band,
watch and cross and chain “were worth a lot more”, the only values
indicated, were $150.00, $50.00, and $50.00, respectively. He also explained
that in order to obtain a permit, the inmate must submit a receipt. In terms of
the limitation on values allowed, this is borne out in the procedure described
in DOCS Directives available to the public at its
specifically Directive 4911, entitled
“Packages & Articles Sent or Brought to
In support of his valuation of the lost stamps, toothpaste, and soap bar, he
presented a receipt dated March 6, 2006 from the Green Haven commissary giving
the values set forth above. [Exhibit 8]. In terms of the shampoo and the various
lotions, he submitted affidavits from the Chaplain for the Nation of Islam
Prison ministry at Green Haven, and from one of its inmate representatives
indicating that as part of their fund raising efforts, these products are sold
at $3.50 each, and that Mr. Figueroa bought a “number” of these.
[See Exhibit 9].
With regard to the trial transcript, Mr. Figueroa produced a letter dated April
16, 2007 from the court reporter who had originally transcribed the minutes.
[Exhibit 4]. She was paid $6,902.50 for her services, and indicates that were
she to transcribe an additional copy of such minutes, it would again cost
$6,902.50. [Ibid.]. After some colloquy between counsel for the
defendant and claimant, it appears that claimant’s family (may have) paid
to replace the transcript, but claimant did not have a receipt for what his
family paid to replace it. Additionally, however, claimant received another
copy of the transcript from his attorney, apparently free of charge. There was
no explanation as to why he would pay for a transcript when he had obtained one
at no charge.
Claimant acknowledged that he was advised (in the form of the denial of his
grievance) that Jamie Figueroa was never at Downstate Correctional Facility,
where he said he lost the property. He indicated further, however, that in terms
of where his property was actually lost, claimant was “going by what the
department showed. . . [ him] in the forms,” and it was DOCS which
“had control over the property.” He confirmed that he “did
not know any Jamie Figueroa,” and that they were “not
Asked to explain why he did not have certain receipts claimant testified that
he had to “surrender” them to the package room. Asked whether he was
given copies of receipts by the package room, or whether he had tried to obtain
receipts, he declared that they “did not give copies.”
Defendant argued at closing that the value of the lost transcript had not been
proven, nor had value been proven with regard to the other items, and the person
Mr. Figueroa said signed for his property had never been at Downstate.
Claimant argued that “whoever signed for the property, signed for it two
weeks after [claimant] had already been at Rikers.” Additionally, he said
that even though the I-64 form indicates that there was a transcript
inventoried, “they denied [his] claim saying that the inmate claim form
did not contain any reference” to the transcript.
No other witnesses testified.
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 bailee, and the latter’s 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).
With respect to value, claimant must satisfy the court of the fair market value
of the items in question. Phillips v Catania, 155 AD2d 866 (4th Dept
1989); Schaffner v Pierce, 75 Misc 2d 21 (New York Dist Ct 1973).
Receipts are the best evidence of fair market value, although uncontradicted
testimony concerning replacement value may also be acceptable.
The 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).
Resolving issues of credibility is the province of this court as the trier of
fact. LeGrand v State of New York, 195 AD2d 784 (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. In this case, the only witness to testify concerning the matter
was Mr. Figueroa. 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.
Upon review of all the evidence, including listening to claimant testify, and
observing his demeanor as he did so, the court finds that claimant has
established the elements of his bailment claim, at least in part. For the most
part he was credible, although he appeared to become too frustrated when
testifying to clarify where he arrived at the values of items lost, particularly
with regard to the trial transcript, and had some selective presentation of
matters. Indeed, he seemed to accord weight to the idea that the transcript
originally purchased had a separate value from any newly purchased transcript,
and did not explain why a new one was purchased (if it was) when another copy
was in hand.
The court finds that the notation in the determination of the facility claim
concerning whether the “other inmate” was at Downstate Correctional
Facility is suspect, given that the writer simultaneously wrote that the
transcript was not noted on the inventory, when it clearly is, and claimant
testified without contradiction that he did not return to Downstate until
October 2006. Somebody - Jamie Figueroa or someone else entirely - signed for
the property in June 2006, and claimant has demonstrated that it was not
The court finds that claimant has established his own initial possession of the
items listed on the I-64 [Exhibit 3], delivery to the State’s custody and
control, that the State lost or misdelivered claimant’s property, and, in
some cases, value. While receipts presented were not directly related to the
actual items lost, together with claimant’s testimony they show the cost
of replacing such items. Thus, for example, even if the receipt from the
commissary [Exhibit 8] was not the actual purchase receipt, together with
claimant’s credited testimony, the value of the items lost is established.
In the same vein, although the attestation concerning the products used in
fundraising for the Nation of Islam [Exhibit 9] is general as to the number of
products purchased and the timing, and is clearly not a receipt per se, together
with claimant’s credited testimony the value for such lost products is
shown. There has been no rebuttal of the presumption of negligence that arose
when claimant arrived at Green Haven and demanded return of his property.
See Mathis v State of New York, UID # 2005-009-147, Claim No.
102059 (Midey, J., December 8, 2005). Thus, the State is obligated to compensate
claimant for the fair market value of the items lost.
The court finds that claimant has established the requisite elements of a
bailment with respect to the wedding band ($150.00), the watch ($50.00), the
cross and chain ($50.00), eleven (11) bars of soap ($8.60), one (1) tube of
toothpaste ($1.96), seven (7) shampoos ($24.50), four (4) lotions ($14.00), five
(5) body lotions ($17.50), fifty (50) stamps ($19.50) and five (5) deodorant
sticks ($6.70). The cost of replacing the trial transcript is, however,
excluded since same was apparently obtained free of charge, representing a
failure to minimize or mitigate damages. See Nierenberg v Wursteria,
, 189 AD2d 571 (1st Dept 1993), lv denied
82 NY2d 651
(1993); Matter of Terranova v State of New
, 111 Misc 2d 1089, 1099 (Ct Cl
Based on the foregoing, claimant has established that the fair market value for
the items lost is in the amount of $337.85, and he is hereby awarded damages in
the amount of $337.85 plus statutory interest [§16 State Finance Law;
§ 5004 Civil Practice Law and Rules], which the Court finds presumptively
reasonable, from October 26, 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.
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.