New York State Court of Claims

New York State Court of Claims
SMYTHE v. THE STATE OF NEW YORK, # 2010-030-002, Claim No. 112289


Bailment claim dismissed after trial. Claimant failed to meet his burden of establishing every element of cause of action, including lawful possession, delivery, negligence and value. Destruction of contraband likely not compensable in any event.

Case information

UID: 2010-030-002
Claimant short name: SMYTHE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112289
Motion number(s):
Cross-motion number(s):
Claimant's attorney: FRANCIS SMYTHE, PRO SE
Third-party defendant's attorney:
Signature date: January 22, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Francis Smythe alleges in his claim that while he was confined pursuant to disciplinary proceedings, defendant's agents at Green Haven Correctional Facility [Green Haven] lost or damaged his property. Specifically he states that on January 27, 2005 his cell was searched and items were seized by correction officers. He was issued a contraband receipt and a misbehavior report for a keyboard and its case. Thereafter, he was sentenced to one hundred eighty (180) days in the special housing unit [SHU] as a disciplinary sentence after a Tier III Superintendent's hearing, and was transferred to SHU on March 7, 2005. His remaining personal property was packed up at that time, he alleges, including items stored in the hobby shop locker. Those latter items included a keyboard, clock movements and parts, music box movements, assorted hardware, wood, glue, finishes, paints, pens, inks, brushes and stains. [Claim Number 112289 Page 3 and 4]. After pursuing administrative appeals of the disciplinary finding, he alleges that it was directed that his property be returned to him. On June 1, 2005, he writes, he learned that the facility had completed its search for his property and could not locate it, and he was told to file an institutional claim pursuant to the inmate personal property claims remedy. All appeals of this remedy were denied on or about December 16, 2005 he avers.

The claim filed in this Court demands $2,098.14 as damages for loss of a Roland XP50 keyboard ($600.00) and its case ($200.00); a Yamaha PSR320 Keyboard ($400.00) and its case ($40.00); three (3) cartridges for the Yamaha ($90.00); fifty (50) clock movements, parts, hands ($114.56); two (2) music movements ($47.90); two (2) sets of hinges ($70.00); wood ($274.75); one (1) quart of wood finish ($12.99); two (2) quarts of paint ($8.99); a calligraphy pen set ($16.90); ink ($9.45); brushes ($44.00); powdered wood stain ($4.95); Apoxy wood finish ($120.00), as well as loss of wages ($43.65). [See Claim Number 112289, filed May 1, 2006].

At the trial of the matter, Mr. Smythe essentially testified as set forth in his claim, with some variation, some amplification, and some confusion. He was the only witness to testify on his direct case. The "ticket"(1) [misbehavior report] that resulted from the cell search conducted on January 27, 2005 he explained was based on a charge that claimant had stolen certain materials including a glass bottle from the hobby shop to make the keyboard case. [See Exhibit 6]. The misbehavior report provides that Correction Officer Miller conducted a search of claimant's cell on January 27, 2005 and confiscated

"one large instrument carrying case . . . made of wood, leather and soft foam. Case was green in color. Two small glass jars of paint were also confiscated. All contraband was brought to the Cap. Office and Smythe was given a contraband receipt . . . Items and materials used to build the box were stolen from industry." [Ibid].

The facility violations noted are possession of contraband and stealing State property. [Ibid.]. A contraband receipt for January 27, 2005 shows confiscation of "1 large green leather key board case" and "2 small glass paint jars." [Exhibit 1]. Claimant was found guilty of possession of contraband at a disciplinary hearing, and a penalty disposition of 180 days in SHU starting February 6, 2005 was imposed, as well as loss of privileges. [Exhibit 6]. It was also noted at the Superintendent's hearing by the hearing officer that the contraband seized was to be "save[d] . . . pending appeal and court review." [Ibid.]. This is also mentioned in the transcript of the disciplinary hearing. [Exhibit 2, Page 63].

While serving his disciplinary sentence in SHU at Green Haven, claimant was transferred to the Clinton Correctional Facility [Clinton] SHU. He testified that as he oversaw the packing up of his property at Green Haven, on or about March 7, 2005, he told the officers packing up that he had additional property in the hobby shop. Claimant testified that "Sergeant Hann - who was in charge of the hobby shop - was informed and would take care of it." He said that items "in the hobby shop locker were not all packed up." Before he moved to Clinton he said that "two keyboards I had ordered came to the rear gate - one was supposed to be donated to the Catholic Church, and the other was to go to me - but instead landed in the captain's office."

When Mr. Smythe was released from SHU at Clinton after "reversal of the ticket", he was shown his property, and "whole bags of property were missing." Describing what was missing from the cell, he said there were two keyboards ("one with the hard case, one with a soft case"). From the hobby shop locker, he said he was missing "three (3) cartridges for one of the keyboards, clock movements, music movements, hinges, lumber, finish, paint, calligraphy pens, ink, brushes, wood stains, [and] epoxy wood finish." The correction officers there told him to file a claim.

Mr. Smythe said he filed a grievance first, and then filed an inmate personal property loss claim. [Exhibit 4]. The facility claim filed at Clinton, dated June 3, 2005, was denied, as he understood it, because of a lack of proof of ownership, and also because the "keyboards were above the $200.00 maximum." [See Exhibit 4]. He said: "you're allowed to purchase things for a $200.00 maximum. One keyboard was a $600.00 one, which ended up in Captain Keyser's office, and they said they would not replace anything over that amount." A memorandum from J. Barcomb, Head Account Clerk, to Mr. Smythe issued during the investigation of his facility claim, dated September 1, 2005, confirms that the claimant had not provided proof of ownership, including receipts to show time of purchase and the price; and notes that the clerk had reviewed claimant's package room file and found no evidence of receipt of the keyboards or the cases among other things. [Exhibit 5]. The reasons stated for the November 7, 2005 denial of the facility claim are:

"Security investigation conducted at Clinton and Green Haven Correctional Facilities reveal items listed in this claim either (1) were not possessed by the claimant; or (2) were deemed contraband. Claimant has failed to respond to requests made by this writer on 08/11/05 and 09/01/05 to provide proof of ownership." [Exhibit 4].

Five pages of package room receipts, noting receipt of hobby shop materials at various times at Green Haven, were submitted to this Court. [Exhibit 3]. Two receipts are from December 2003, describing receipt of "clock parts" from "National Artcraft" and "2 resin letters 11 dowels 12 sponges 1 transfers" from "CherryTree" on December 9 and December 18, 2003, respectively; another is dated January 27, 2004 and notes receipt of "2 Resin 2 bar top hardner" from "Klock it;" the next is dated March 31, 2004 and notes receipt of "2 bundle of wood" from "Bristol Hardwood;" and the last is dated July 13, 2004 and notes receipt of "material" from "JoAnn Fabrics." [Ibid.]. No values are listed on the package room receipts (nor is there any location on the form for a listing of value). [Ibid.].

Claimant submitted a permit for a Yamaha PSR320 keyboard, dated February 19, 2007. [Exhibit 8]. He also submitted "what receipts [he had]." [Exhibit 7]. Explaining which items he claimed were lost on the receipts he submitted, and that in some cases the receipts were being submitted to "show the cost" but did not necessarily refer to the item actually lost, he listed one (1) Yamaha PSR-320 keyboard with cords and adapter purchased on September 11, 1996 for $185.14 [Exhibit 7, Page 1]; two brushes (one (1) four-inch brush and one (1) one-inch brush) purchased on December 2, 1998 for $7.29 and $4.99 respectively [Ibid. Page 2]; an unspecified number of hinges for $6.00 each, an unspecified number of "arabic numeral" for $.70, an unspecified number of "white numerals" for $.70, a gallery spindle costing $3.30, a pendulum unit costing $10.95, numerous other clock items that have no price listed, and a six-inch square roman dial made of brass costing $2.75, all purchased in November, 1997 [Ibid. Page 3]; and four (4) gallons of Kraftkote coating purchased for $104.95 on January 16, 2004 [Ibid. Page 4]. A receipt dated October 17, 2001 contains a further list of craft material claimant indicates were still in his hobby shop locker when he was moved, but no prices are indicated. [Ibid. Page 5]. A receipt dated March 9, 2004 from Bristol Valley Hardwoods lists 10 board feet of walnut for $49.50 ($4.95 per board foot), 5.15 board feet of purpleheart for $33.48 ($6.50 per board foot), 5 board feet of Padauk for $32.50 ($6.50 per board foot) and 1 board foot of pine for $90.00. [Ibid. Page 7].

Finally, during cross-examination, he submitted an I-64 inventory form dated March 7, 2005 from Green Haven [Exhibit 9] that refers to "All Hobby Shop" but does not itemize same. Mr. Smythe presented "his" I-64 inventory form when counsel for defendant showed claimant a photocopy of what appeared to be the same I-64 from Green Haven with additional markings placed on it presumably at Clinton, although claimant would not initially agree that the forms were the same. [Exhibit A and Exhibit 9]. He conceded that it was his signature on the Clinton forms [Exhibit A] but said that signing an I-64 form "doesn't mean that everything was there. I have to sign it because otherwise I don't get anything." Claimant also said that it was not his signature that appears on an additional form certified as being part of his records at Clinton. [See Exhibit A]. This additional form, dated "04-13-05" (after his transfer to Clinton?), provides that the signing inmate (indicated as claimant) has

". . . this date, been personally present while my personal property was packed for transfer. I am satisfied that all the personal property which I had in my possession at Green Haven Correctional Facility has been properly packed for transfer. I have been made aware that glass, glass paintings and ceramics cannot be safely transported by the Department's vehicles without risk of damage. I wish to ship these items within the four bag limit at my own risk and release the Department of Correction from responsibility for damage of these items."

During further cross-examination, claimant repeated that he had discussed safeguarding the hobby shop items with Sergeant Hann during his transfer to SHU, and was assured that they would be taken care of. Claimant repeated that all the items claimed in the claim before this Court are from the hobby shop locker, including the keyboard kept in the big locker in the hobby shop, and the wood. He repeated that the Yamaha keyboard was purchased in September 1996, and agreed that as of the loss in March 2005 it was almost 10 years old. He argued that the $200.00 value asserted in the claim is what he purchased the keyboard for, and is also "what it would cost for a new one." He testified that the value of the 10-year-old keyboard were he "to go out and sell it" would be $200.00 because he "took care of it."

With regard to the materials claimed for building clocks and music boxes, purchased eight years before the claimed loss, he insisted that even though he regularly built such items during that period the materials were still in the locker. The same was true, he said, with regard to the Kraftkote coating that he used as a substitute for glass during his work. While the "whole four gallons" purchased in January 2004 [Exhibit 7, Page 4] might not have been in his locker - "there might have been less or more" - such material was nonetheless stored within his locker. He said: "I used to buy 4 gallons at a time. They were sent in smaller containers and all of the containers were in the locker. The receipt [Exhibit 7, Page 4] reflects stuff that was used up."

Asked to review the list of items from the receipt dated October 17, 2001, Mr. Smythe said "all this stuff was there . . . It doesn't spoil or go bad." [Exhibit 7, Page 5]. He claimed not to have used the craft materials between October 2001 and March 2005. [Id.]. Similarly, he claimed not to have used the pine listed on the March 9, 2004 receipt for wood between March 2004 and March 2005. [Exhibit 7, Page 7].

The defendant called Correction Lieutenant S. Hann - a correction sergeant in charge of tool control at Green Haven in March 2005 - who testified concerning her contacts with Mr. Smythe. The lockers in the hobby shop are "top-to-bottom lockers approximately 3 ft high by 1 ft deep and wide . . . just a small locker" that would not fit much. She said that in September 2004 the facility reinstituted a procedure whereby "class-A hobby shop tools" were kept in the housing units for inmates "who would have the privilege of in-cell hobby shop projects." Class-A tools are "under security supervision" she explained. They include "cutting instruments anything that's extremely harmful", and are kept in a locker in the housing unit with the inmate's name and a "perpetual inventory along with it." To utilize the tools, an inmate would present his identification to the officer, and then take his tools back to his cell for in-cell use. She testified that

"once a week I would make rounds of all the housing units and inventory for any lost, damaged or missing items. In December 2004 I went to Mr. Smythe's housing unit and found there were extra class-A tools in his hobby shop locker. He tried to say they had been there the whole time, and that I had miscounted them weekly. Yet I have a hobby shop permit, he has a copy and the tool patrol and the hobby shop has a copy, so I revoked his privileges for doing hobby shop work, issued him a misbehavior report, and confiscated hobby shop materials out of his cell."

Lieutenant Hann denied going over hobby shop materials with Mr. Smythe in March 2005 in response to his move to SHU. She said "that happened immediately after the seizure I described in December 2004." His cell was packed up at that time, including Class-A and Class-B tools. The misbehavior report she issued then charges him with possession of tools without authorization, smuggling and lying. [Exhibit B]. The officer met with Mr. Smythe either that afternoon or the next day with regard to the property confiscated. She said: "because of the amount of property he had we used the tables in reception . . . Everything was inventoried for disposal at his choosing, that is to send out with a visitor, mail at his own expense, or destroyed." There was no similar meeting in March 2005, she said, nor did she ever tell claimant that his hobby shop property would be "packed up and taken care of."

In terms of the property seized per her December 2004 misbehavior report, "all items were disposed of as he requested," to her knowledge. All the tools were "sent out to his own people" and the rest of his cell was packed up; "he did throw a lot in the garbage," she said.

After the hearing on the misbehavior report he was found guilty on all charges, and sentenced to thirty (30) days keeplock starting January 7, 2005 and ending on February 6, 2005, loss of privileges and packages for the same period, and the property was confiscated. [Exhibit C].

On cross-examination the witness confirmed that a sentence of keeplock is not a removal to SHU, but rather a confinement in the inmate's own cell within the housing unit. She confirmed that after the discovery of the additional screwdriver on or about December 1, 2004 - but prior to issuing a misbehavior report to Mr. Smythe - she "checked with the inmate, checked with the civilian, and also checked with the nighttime correction officer and concluded that it had to have been the inmate who did it." Thus "after [her] investigation" she issued a misbehavior report on December 7, 2004,

"revoked Mr. Smythe's hobby shop privileges, got the officers to come and search his cell and removed anything hobby shop related. At that point, we went to the reception area to go through it all. The officers bring the property down to reception. The inmate is present and it is all laid out for his review. I was present, the officer was present, the inmate was present. Mr. Smythe was informed that he no longer had hobby shop privileges, that a misbehavior report was being written, and that he could dispose of any hobby shop tools supplies and materials. How he was still doing hobby shop three (3) months later, I do not know, but there was an investigation about it. They came and asked me if I had revoked his privileges, but I did not have anything to do with that misbehavior report."

Finally, Deputy Superintendent of Security William F. Keyser, who was a Captain at Green Haven during 2004 and 2005, testified. He stated that there was a time he became aware that a keyboard had been received at the back entrance. United Parcel Service delivered a parcel addressed to the recreation department to the facility storehouse through the rear gate. Had it been addressed to an inmate, it would have been processed through the front gate. Mr. Chumis, "the rec civilian", went to the storehouse and picked up the keyboard. "He looked at it and realized it shouldn't be allowed in." Mr. Chumis brought the matter to the attention of Sergeant Showler, who brought it to the attention of the witness.

The primary problems were that the keyboard was not addressed to any person, and, if it was to have gone to an inmate, the maximum allowable value for a keyboard possessed by an inmate was $200.00, and the value was much greater. At some point, Deputy Keyser said,

"inmate Smythe brought it to someone's attention that it was his keyboard. It came in, I believe, from the music store in Poughkeepsie, New York called 'Let's Jam'. I called the music store several times, spoke to the manager, trying to ascertain who purchased the keyboard. The manager said it came from somewhere else with a note asking them to send it into the facility the way it was addressed."

Deputy Keyser asked the manager to see if he could find the note, or to otherwise discover who had sent it and for whom it was intended, but the manager never got back to him. As a result, the keyboard stayed in Keyser's office, from the date it came to his attention, until (presumably) December 2008 when it was donated elsewhere. Deputy Keyser said that he was transferred to Arthur Kill Correctional Facility in January 2007. Sometime after his transfer to Arthur Kill he received a telephone call from Green Haven about the keyboard, that was then locked in the administrative lieutenant's office. The caller was asking the witness what they were to do with the keyboard. Since Mr. Smythe had asserted that it was his keyboard, he had been directed to "provide proof of ownership but never did." Deputy Keyser recalled the value of the keyboard as being "$400.00 or so." He said "donation to a charity is pretty routine if an inmate cannot prove ownership." The keyboard was thereafter donated to a local Catholic school, as memorialized in a thank-you note from the principal. [Exhibit D].

On cross-examination, Deputy Keyser confirmed that if there is a return address on a package for any inmate, it would be returned to the sender. He did not recall claimant being put on the telephone with the witness and Officer La Porta present to find out who owned it.

No other witnesses testified and no other relevant evidence was submitted.

Upon review of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has not established any basis for the State's liability. While claimant presented as an amiable person, his credibility was somewhat fluid, and he simply did not prove his claim of loss based upon credible evidence.

It is not clear what claimant sought to establish on the trial of this claim. As a bailment claim, 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, all the elements are not established [see generally Claflin v Meyer, 75 NY 260 (1878); Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 (3d Dept 1981)] with regard to any of the property actually listed as missing in the claim filed in this Court.

Certainly, 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 a 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). "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., supra at 1050.

With respect to value, a 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.

While initially the Court was persuaded to some degree that materials of some indeterminable kind and amount were lost, and that the defendant had made itself responsible for the property by indicating that it should be "saved" pending the appeal of the second seizure incident alleged in January 2005, upon review of the documents submitted and the testimony it is completely unclear what the claimant lawfully possessed at the time of loss alleged in the claim, and the series of losses he testified to, what was seized and when, what property was to be "saved" pending appeal, what property was packed up upon the claimant's removal to SHU, and what property was lawfully included on his transfer to Clinton.

It is ultimately claimant's burden to establish every element of his claim. He has not established his own possession of the property, delivery, negligence or value. He did not persuasively link, for example, through testimony or other evidence, the items he listed as missing to receipts or package room documents. No receipts or other evidence effectively established that claimant lawfully possessed the property listed in the claim filed here, that it was delivered to the defendant, and then not returned.

The Court notes parenthetically that although defendant did not cite to any particular provision concerning what effect property's designation as contraband will have on an inmate's ability to control its destiny, some research indicates that as "contraband" an inmate is not allowed to possess, the inmate may not be entitled to compensation for its destruction in any event because his initial possession is not authorized. See Patterson v State of New York, UID #2000-029-020, Claim No. 94538 (September 26, 2000, Mignano, J); Barrett v State of New York, UID #2000-001-036, Claim No. None, Motion No. M-60959 (June 30, 2000 Read, P.J.).

Accordingly, claimant has failed to establish, by a preponderance of the credible evidence his cause of action in the nature of a bailment. Defendant's motion to dismiss, upon which decision was reserved at trial, is now granted, and Claim Number 112289 is in all respects dismissed.

Let judgment be entered accordingly.

January 22, 2010

White Plains, New York


Judge of the Court of Claims

1. Quotations are to trial notes or audio recordings unless otherwise indicated.