Inmate claimant did not establish bailment claim after trial. Did establish State liability in part for a failure to follow its own policies concerning allowing inmates to bring reading material to the hospital waiting area. State personnel negligently directed inmates to place personalty in an unsecured area not monitored in any way, with the foreseeable result that items would disappear. Claimant also negligent.
|Claimant short name:||NARVAEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||LUIS NARVAEZ, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: JEANE STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||November 23, 2009|
|See also (multicaptioned case)|
Luis Narvaez alleges in his claim that defendant's agents at Green Haven Correctional Facility [Green Haven] negligently lost his personal property while he was incarcerated there on or about November 13, 2006. Trial of the matter was held at Sing Sing Correctional Facility on October 23, 2009.
Mr. Narvaez testified that on November 13, 2006 he was "leaving building twelve, the school building"(1) after teaching a class, heading to the "medication lobby" to receive one of his thrice-daily medications. He had been teaching a religious class on that day, and was carrying his Santeria Bible. When he arrived at the "medical bull pen", Correction Officer Morris told him he was not allowed to bring the book into the bull pen, and told him to place the book on top of the red firebox just outside the bull pen area.
After spending about "one hour or an hour and fifteen minutes" Mr. Narvaez said he came out after taking the medication and the book was not there. He immediately complained to Correction Officer Morris, who told him to "keep moving" out toward the housing unit. Correction Officer Morris also said to "not worry, that he would go back and get the book." When claimant arrived at the B-Block housing unit, Correction Officer D. Combs called the clinic at claimant's request to see if the book was still there. Claimant was told to "wait right here" and that on the next "med return your book will be returned to you." Claimant waited for about one-half hour, but the book never materialized.
About three (3) days later, Claimant said he "saw Officer Morris in industry", where claimant's job assignment was at the time. Claimant asked him what happened to the book, and was told that when Officer Morris returned to the bull pen, the book was not there.
Claimant filed a facility claim form [Exhibit 3], which was disapproved on or about December 12, 2006. [Exhibit 4]. The disapproval indicates that "the facility was not at fault" and that the "inmate was in possession of item and knew he could not bring it to the clinic." [Id.]. The superintendent's appeal was denied as well on or about January 5, 2007. [Id.]. He established that he had purchased the book on or about September 25, 2006 for $39.95. [Exhibit 2]. With postage, he claimed a total expenditure (and loss) of $44.45. [Exhibit 1].
Claimant testified that "about a year later" he found a facility policy as represented in a memorandum dated November 8, 2006 that apparently was in effect on the day his book was lost. [Exhibit 5]. The policy provides that inmates in the hospital waiting area "will be allowed to carry one (1) book or magazine (nonpornographic) with them to read while waiting for medication, appointments, etc." [Id.].
On cross-examination, claimant confirmed that it was the routine practice to require that inmates coming to the medical waiting area place all personal property outside the waiting area on the firebox, and that inmates were not allowed to bring personal property into the area. He confirmed that he was familiar with this routine practice, and that it was he - rather than the officer - who placed the book on the firebox at the officer's direction. He did not see any other objects on the top of the box at the time. Mr. Narvaez said that he had been required to put other items on the firebox on previous occasions. It is not an area that is "manned" by officers. When asked, he said that he did not see any other property in the general area on the firebox when he first placed the book on it. He said that his group "is the last to come for medication, the school building closes at shortly before 9 o'clock." Mr. Narvaez first said that he was not allowed to get the book back from the firebox after he received his medication, but clarified that he was on his way back to the housing unit ("I had walked a couple of feet") when he "realized" he had left the book on the firebox, he went to go grab it and was not allowed to do so. He acknowledged when pressed that he could have retrieved the book had he picked it up in the first place when leaving the medication area for housing, and that it was only when he was already in movement to the housing unit that he turned around, tried to go back, and was prevented from doing so.
Defendant acknowledged that the State had been served with the claim by certified mail, return receipt requested, and that no answer had been served and filed. Claimant moved for "summary judgment" on that basis.
No other relevant evidence was submitted and no other witnesses testified.
As an initial matter, while the defendant's failure to answer the claim prevents the defendant from raising defenses it might have raised at trial - such as a failure to exhaust administrative remedies, or personal jurisdiction - and prevents defendant from presenting witnesses, claimant must nonetheless establish his claim by adequate proof. This is because the Court of Claims Act prohibits the entry of a default judgment against the State. See Court of Claims Act §12(1);(2) Mabry v State of New York, UID #2007-029-050, Claim No. 110024, Motion No. M-74215 (Mignano, J., November 28, 2007); Gibson v State of New York, UID
#2000-017-611, Claim No. 101212, Motion No. M-61208 (O'Rourke, J., December 20, 2000).
Upon review of all the evidence, including listening to Mr. Narvaez testify and observing his demeanor as he did so, the Court finds that claimant has established a basis for the State's liability.
Under these facts, no bailment was created requiring the defendant to secure claimant's property. See generally Claflin v Meyer, 75 NY 260 (1878). "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). It is also "a factual question as to whether the parties intended to or did create a bailment. Such a question . . . would have to be resolved by [this Court as] the trier of the fact . . . (citation omitted).[Id]. Moreover,
"[t]he determination as to whether the relationship is one of bailor and bailee turns on whether there is a relinquishment of exclusive possession, control and dominion over the property. Hurton v. Public Storage Management Inc., 177 Misc. 2d 540, 676 N.Y.S.2d 886 (1998). It is essential that there be either actual or constructive delivery by the bailor as well as actual and constructive acceptance by the bailee. Mays v. New York, N.H. & H .R. Co., 197 Misc. 2d 1062, 97 N.Y.S.2d 909." Alston v State of New York, 9 Misc 3d 1126(A)(Ct Cl 2005).
In the claim before this Court, while there was proof that claimant had a book in his possession up until the moment he placed it on the firebox, and that it had a certain value, there is no showing of any intent to create a bailment, delivery to defendant, or dominion and control on defendant's part, such as would render the State responsible for the property's safekeeping in the exercise of ordinary care. There is no implied or actual delivery, or implied or actual acceptance of the responsibilities of a bailment.
Claimant's alternative theory that the correctional facility negligently violated its own policies by not allowing him to bring the book with him into the medical waiting area, while weakened somewhat by the actual practice of the facility - known to the claimant - of generally not allowing personal items in the medical waiting area, is established on this record. Claimant testified without contradiction that the memorandum submitted states a policy that was in effect on November 13, 2006 and was not followed by correctional personnel. Even if the policy was routinely violated - as suggested by defendant - it does not render such violation excusable. Certainly, if personnel routinely required inmates in their custody and control to place personalty in an area that was not secured or monitored in any way, a foreseeable consequence of such a requirement is that items would disappear. By the same token, it was claimant who forgot the book in the first place. He, too, is partially responsible for the unfortunate loss of a book of significant meaning to him. Accordingly, the Court finds that the defendant is 70% responsible for the loss, and the claimant is 30% responsible for the loss.
As noted, claimant spent $44.45 to purchase the bible approximately two months before this incident. 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). Thus, although claimant indicated he also seeks the cost of postage for serving and filing this claim, such is not compensable.
Based on the foregoing, claimant's total recovery therefore is in the amount of $31.12, plus interest pursuant to §§5001 and 5002 of the Civil Practice Law and Rules, and the cost of any filing fee actually paid to the Court of Claims. See Court of Claims Act §11-a (2).
Let judgment be entered accordingly.
November 23, 2009
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. All quotations are to audio recordings unless otherwise noted.
2. Court of Claims Act § 12(1) provides in pertinent part: "In no case shall any liability be implied against the state. No judgment shall be granted on any claim against the state except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity."