Claim dismissed after trial. Did not credibly establish that the 500 greeting cards were paid for, and that they were not received by the vendor when mailed back as excess property. No neutral, corroborative proof that claimant requested insurance in the amount claimed.
|Claimant short name:||FELIX|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||DONALD FELIX, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||March 15, 2010|
|See also (multicaptioned case)|
Donald Felix alleges in his claim that on June 19, 2007, when he went to the package room at Green Haven Correctional Facility [Green Haven] to pick up 500 greeting cards he had ordered - at a cost of $1.00 each - he was told by personnel that he was only allowed to possess 50 greeting cards per month, and thus could not pick up the entire package. [Claim Number 114614]. Claimant took the 50 cards allowed, and was advised that the remaining 450 cards would need to be sent out of the facility. Claimant explains in his claim that the postal service insurance form is completed by staff, as inmates are not provided with same. Mr. Felix alleges that he then arranged for the remaining cards to be mailed out, "fully insured," but the postal service insurance form negligently completed by staff only insured the package to the extent of insuring it for $50.00, in contravention of his request. When the package was lost, and he made a claim for replacement with the United States Postal Service [USPS], he could not obtain full compensation and now seeks damages from the State of New York in the amount of $388.90.(1)
In its answer, in addition to general denials, defendant asserts seven affirmative defenses, including claimant's culpable conduct or the culpable conduct of others for whom the defendant has no legal responsibility, and immunity, among others. Trial of the matter was held on January 29, 2010.
At the trial claimant testified essentially as set forth in his claim, and submitted documents in support of his claim. He furnished a receipt he testified was from Mama Fina's House Inc. [Mama Fina's] showing a purchase of 500 greeting cards at a cost of $1.00 each on or about June 8, 2007. [Exhibit 1]. The facility form ["the 2068"] for disposal of the 450 surplus cards is dated June 19, 2007 and shows that his first choice for disposal was that they be picked up by a visitor, and that his second choice for disposal was that they be returned to Mama Fina's (so that he could obtain reimbursement) if a visitor did not pick the package up within fourteen (14) days. [Exhibit 3]. There is no specific spot on the facility form to indicate either the value of the property, or the amount of insurance, if any, the sender wishes to purchase. [See id.].
Claimant testified that in his experience at Green Haven
"you are not allowed to fill out the insurance paperwork itself . . . you are only given the 2068 form and the disbursement form . . . When I gave the officer the 2068 and disbursement form, I informed him [verbally] that I would like the package to be fully insured."
The insured mail receipt, stamped by the USPS at Stormville on June 26, 2007, shows only $50.00 insurance coverage, and an insurance fee paid of $1.65, in addition to postage in the amount of $11.10. [Exhibit 4]. The insured mail receipt also indicates that it is for packages valued at "$200 and under." [See id.]. As to when he first saw the insured mail receipt, claimant said he "did not get to see it on the spot."
Claimant said that "after about three weeks" he had not received any refund from Mama Fina's. He testified that he wrote to the company, who wrote back saying no package had been received, and also sent him a photocopy of a USPS tracking form with the numbers on the insured mail receipt thereon [Exhibit 5] showing that the number "didn't exist" leading claimant to think that the package "never left Green Haven." No copies of his letter to Mama Fina's, or any response from Mama Fina's (purportedly enclosing Exhibit 5, the search with the tracking number) was submitted in evidence. There is no indication as to when any USPS search utilizing the insurance receipt number was made or by whom, on the photocopied, uncertified, document. [See id.].
Claimant filed a grievance on August 20, 2007 concerning his missing package, which was denied with the direction that claimant write to the postal service. [Exhibit 6].
When he wrote to USPS, they wrote him back enclosing a claim form. Claimant said that "it was at this point" that he realized he would get only the amount for which his package was insured, namely $50.00. Nonetheless, he filed a postal service claim for $462.75 signed October 16, 2007. USPS ultimately accepted his claim for the insured amount in November 2007, and sent him $61.10 (the insurance amount and postage). [Exhibit 7].
In the meantime, he filed another grievance, based on the "realization that [he] was only going to get $50.00," in September 2007. [Exhibit 8]. Claimant argued that the denial of the grievance on October 25, 2007,
"acknowledges that I asked for insurance, but says I did not ask for an amount . . . then they take it upon themselves to apply the lowest amount of insurance instead of calling me back to the package room to ask me what amount of insurance I would like on this package."
Claimant said that to his knowledge there was no directive or rule in place to the effect that personnel could apply the lowest amount of insurance regardless of the value of the package. His experience in the nine years he had been at Green Haven was that "you just told them verbally what you wanted . . . There is no place on the form ."
Claimant also said that the superintendent's notation in the denial of the second grievance on October 25, 2007 that "the fact that the grievant has received a tracking number, indicated that package was mailed" [Exhibit 8] is wrong. He said, "as I testified, the tracking number printout states that the number was 'invalid' at the time the search was conducted [after June 26 2007], but it was invalid because it's a mail receipt number."
Claimant also filed two property loss facility claims on August 20, 2007 and again on September 25, 2007 respectively. Both were denied. [Exhibit 10]. He was also instructed to check with the post office on the denial of the first claim, and told that his claim was untimely on the denial of the second claim. [Id.].
"in closing had the facility put the proper insurance on the package we would not be here. I would've gotten the reimbursement. Green Haven did not have a way of letting the inmates put the proper insurance on. I asked that the package be 'fully insured'. By their subsequent act of obtaining some amount of insurance, they showed that I had asked for some insurance. If they had just asked me what I wanted as insurance we would not be here. I am asking for $388.90."
Asked how personnel in the package room would know the value of the property being returned, Mr. Felix said:
"it's all done right on the spot. They separated the property received. I don't get to touch the package 'till they decide what I am getting. It was received with the receipt from the vendor, they decide I can only keep 50 cards, and then the 2068 is completed."
Claimant acknowledged that he "did not say the words 'four hundred fifty dollars' but rather 'I want this package fully insured for the value of the cards'."
On cross-examination he acknowledged that he had not paid the $500.00 for the cards out of his inmate account [see Exhibit A], but rather his mother had purchased them at his request using money from bank accounts outside of the facility. No documentation of such purchase via a cancelled check or bank statement or otherwise was presented.
He acknowledged that he also did not have any documentary evidence showing that he wrote to Mama Fina's to see if they ever received the 450 cards, and had no copy of any letter from Mama Fina's regarding the topic, only his own descriptions of his contact with Mama Fina's as contained in the correspondence to USPS [see Exhibit 7], in the September 25, 2007 grievance [see Exhibit 8], and in the August 2007 facility claim. [Exhibit 10]. He admitted he never tried to telephone the number on the alleged invoice. [See Exhibit 1].
Interestingly, a Tiffany Mattocks is associated with Mama Fina's House, Inc. [See Exhibit 7], and made another significant appearance in a successful prosecution of a bailment claim by Mr. Felix in 2004 before this Court wherein claimant was granted $93.36 in damages. [See Felix v State of New York, UID # 2004-030-018, Claim No. 107522 (Scuccimarra, J., June 28, 2004)]. In 2004 she was described as a friend, and provided an affidavit swearing that she mailed two packages to Mr. Felix, and confirming their content and value. [Id.].
Here, she is referenced by Mr. Felix in his September 5, 2007 letter to USPS in the following fashion:
"A Tiffany Mattocks from Mama Fina's House, Inc. has contacted this office [USPS] prior to this letter, and spoke to a Mr. Rob. As a result of such I received a Direct Query-Intranet-"Quick" Search from the Stormville USPS. This form states that a Quick search was done on the above mentioned insured mail receipt number. The end result was that the number was found to be invalid. I believe this was the result, because this number is being treated as a tracking number when it is a[n] insured mail receipt number. Therefore, please conduct the proper search for this package and kindly inform me of the result." [Exhibit 7].
Thereafter, the USPS claims forms were forwarded to claimant, completed, and submitted, and ultimately approved by the USPS for the insured amount. What kind of investigation USPS performed to assure itself of the legitimacy of the claim, beyond accepting the statements made by claimant, and to what degree Mama Fina's claim of not having received the package was investigated, is not in the record. [See Exhibit 7]. Although the USPS form indicates that a mailing receipt was presented, and that evidence of value for the article was presented (with a copy of such evidence of value "attached"), the latter may be another photocopy of the "receipt" from Mama Fina's submitted on this claim [Exhibit 1], and the former may be the receipt showing purchase of insurance and the stamp by the Stormville Post Office [Exhibit 4].
No other witnesses testified, and no other relevant evidence was submitted.
To establish a prima facie case of negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of plaintiff's injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence. Mr. Felix asserts in his claim that State correctional personnel negligently failed to complete the insurance forms as he verbally directed, that this failure caused him to suffer a loss in the amount of $388.90, and that such loss was foreseeable. Whether he did or did not appeal any personal property claim determination is irrelevant as noted in earlier motion practice. See Felix v State of New York, UID # 2008-030-516, Claim No. 114614, Motion No. M-74550 (March 20, 2008, Scuccimarra, J.).
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 what transpired in the package room when he claims that he verbally asked that the excess property to be mailed out be "fully insured" 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.
To sustain this claim, the Court would have to credit Mr. Felix's assertion that he gave an oral direction to the package room personnel that was understood (even he conceded that he said "fully insured" not the claimed dollar value), credit that Mama Fina's did not receive the package that is documented as having been mailed to it by the facility (after all, there is an insured mail receipt stamped "Stormville, June 26, 2007", Exhibit 4), and ascribe the legal consequence that the failure to properly fill out USPS forms is the proximate cause of a loss of $388.90 associated with the misdelivery or failed delivery by the USPS.
There is no proof of initial payment (by claimant or his mother) for 500 greeting cards beyond a receipt generated by a vendor whose principal would appear to be a friend of claimant's, that does not contain a stamp from Green Haven or other indicia that it was included in the original package of 500 cards. [Exhibit 1]. There is no neutral, corroborative, proof that claimant requested insurance for $450.00 worth of property; indeed the receipt for mail furnished indicates on its face that the value cannot exceed $200.00, and that the insured amount is $50.00. [See Exhibit 4]. Again, the only evidence that this receipt was seen after-the-fact is claimant's testimony. Moreover, the fact of a failed delivery appears to have been based upon only the representations by Mr. Felix and the outside vendor, Mama Fina's, whose value as an independent source is compromised.
The testimony about this particular claim by the seasoned claimant, who continues to impress the Court as a canny individual, was simply not credible when measured against the significant holes in the proof provided.
Based on the foregoing, claimant has failed to establish by a preponderance of the evidence any basis for the State's liability, and claim number 114614 is dismissed in its entirety.
Let judgment be entered accordingly.
March 15, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. 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." Defendant's pre-answer motion to dismiss was denied, because the court found that "however claimant has chosen to characterize this claim, it is nonetheless not one alleging loss or damage to property for which exhaustion of administrative remedies is required as a condition precedent to suit in the Court of Claims. Court of Claims Act §10(9) ...What the claim is alleging is negligence, not the creation of a bailment . . . (citation omitted)." See Felix v State of New York, UID # 2008-030-516, Claim No. 114614, Motion No. M-74550 (March 20, 2008, Scuccimarra, J.).