Pro se inmate claimant established bailment claim and loss after unified trial. Only State witness to testify had no personal knowledge.
|Claimant short name:||VELAZQUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||ROBERT VELAZQUEZ, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||June 23, 2010|
|See also (multicaptioned case)|
Robert Velazquez alleges in his claim that defendant's agents at Green Haven Correctional Facility [Green Haven] negligently lost his personal property after his transfer to the special housing unit [SHU] on or about July 30, 2007. Trial of the matter was held on May 4, 2010.
Mr. Velazquez testified that on July 30, 2007 he was told to pack up his property and was removed from his cell for transfer to SHU. No I-64 inventory form was completed at that time, in his presence. "Two or three days later"(1) he still had not received his property. When he asked the sergeant about it, he was told that the property was still in general population. It was then brought up, he was brought out of his cell to look at it ("it was laid out on the ground"), and he could see right away that his sneakers and his boots were missing. The correction officer with him advised "this is all we have," and asked claimant to sign an I-64 inventory form. Claimant would not sign the form, and was told to file an inmate personal property claim.
Claimant said he obtained record room receipts, and produced a photocopy of an I-64 form showing the property he "came in with from Attica." [Exhibit 1]. He testified that the items lost were: three (3) pairs of New Balance sneakers ($49.99 each when new), one (1) pair of Diadora sneakers ($29.99 when new), one (1) pair of Mountain Gear boots ($49.99); and one (1) hot pot ($16.85). He said he "depreciated the older items" and asked for a total of $129.99 "for everything" in his facility claim form. [See Exhibit 2]. The claim was denied. [Id.].
The claim before this court seeks a total of $250.00, as a "punishment" for losing his property.
With regard to the property losses claimed, Mr. Velazquez produced a receipt from Urban Terrain/The Athlete's Foot dated July 28, 2007 showing a purchase of New Balance sneakers for $44.99. [Exhibits 1 and 2]. Claimant testified that this pair of sneakers was brought in by a visitor "the day before" he was sent to SHU, and was in his possession. Another pair of New Balance sneakers was "three months old" he said, and produced a photocopy of a package room receipt dated May 18, 2007 reflecting receipt of one pair of New Balance sneakers valued at $50.00. [Exhibits 1 and 2]. A package room receipt dated July 26, 2006 shows his receipt at Attica Correctional Facility of a pair of New Balance sneakers valued at $49.99. The same type of package room receipt from Attica shows his receipt on February 9, 2006 of a pair of Diadora sneakers valued at $39.99. [Ibid.]. A local permit dated June 4, 2007, allowing his possession of a hot pot valued at $16.85, and a purchase request form dated May 23, 2007 for disbursement of $16.85, were submitted to substantiate the value of the hot pot he claimed was lost. [Exhibit 1]. Finally, a receipt showing a purchase on June 28, 2007 of a pair of black Smith Chukka Boots for $49.95 was submitted. [Exhibits 1 and 2].
Claimant testified that all the aforementioned property was in his possession prior to his movement to SHU on July 30, 2007.
Lieutenant Kevin Laporto testified for defendant, as to procedures generally when an inmate is removed from the general population to SHU. He said that "the inmate is removed and the cell is secured, until such time as the property can then be inventoried by an officer." Asked what happens when an inmate has the opportunity to pack the cell up himself, he said the situation "varied." The inmate would pack the property in bags, and the cell would be secured until such time as an officer was available to inventory the property.
Shown another copy of the I-64 form dated August 4, 2007 that claimant refused to sign [Exhibit A] - also included in claimant's Exhibit 1 - Lieutenant Laporto said the form shows that the property was inventoried by the officer on that date, packed into 4 bags with numbered tags, and that there were no sneakers and no boots noted (by the officer) as present.
No other witnesses testified and no other evidence was submitted.
This claim is in the nature of a bailment created by delivery of claimant's personal property into the custody of defendant's employees. See generally Claflin v Meyer, 75 NY 260 (1878). The State has a duty to secure an inmate's personal property generally. 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).
After carefully considering the evidence submitted and after having the unique opportunity to listen to the witnesses' testimony and observe their demeanor as they did so, the Court finds that claimant has established his bailment claim in part by a preponderance of the evidence.
As an initial matter, claimant established that he exhausted his administrative remedies as required [see Court of Claims Act §10(9); 7 NYCRR Part 1700].
The testimony offered by Lieutenant Laporto was of limited utility since it was not he who completed the I-64 inventory form that claimant refused to sign on August 4, 2007. Claimant said that the property was presented to him spread out on the floor of SHU, un-inventoried until that day, when it had been ostensibly under State control since July 30, 2007. No witness with actual knowledge was presented to controvert such testimony.
Claimant has established all the elements of a bailment claim with respect to some of the items claimed. An I-64 form dated April 2007 reflecting property he had when he left Attica, that was acknowledged by him as received in Green Haven, included two (2) pairs of sneakers. [Exhibit 1]. The Attica package room receipts for one pair of New Balance sneakers received on July 26, 2006 and for one pair of Diadora sneakers received on February 9, 2006 [see Exhibit 1], which, together with his credible testimony of such possession, show that he possessed the property on July 30, 2007 when he was removed, his property was purportedly secured (outside his presence), and was then not found when he finally saw his property on August 4, 2007.
Other receipts postdate the inventory of his property at Green Haven when he came from Attica and, together with credible testimony of possession at the time of his movement from his cell to SHU, establish possession and value as well with regard to some of the items. The court has not included the New Balance sneakers claimant asserted were three months old, because the photocopied receipt offered contains changes - such as the brand name - without testimony as to who made the change. [Exhibits 1 and 2]. Similarly, the receipt from an outside vendor reflecting a sale of a different brand of boots on June 28, 2007 than the brand claimed here is not persuasive evidence either. [Ibid.].
Claimant's testimony is otherwise credited concerning the value of the property lost, as well as the receipts presented, together with applicable depreciation, to establish the total loss as $77.00. Some items were more than one (1) year old at the time of the loss, thus depreciation is fairly applied to arrive at fair market value as required. See Schaffner v Pierce, 75 Misc 2d 21, 24 (Nassau Co Dist Ct 1973).
Accordingly, Claimant is hereby awarded damages in the amount of $77.00 plus statutory interest [§16 State Finance Law; § 5004 Civil Practice Law and Rules], which the Court finds presumptively reasonable, from the date of accrual of August 4, 2007 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.
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.
June 23, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. All quotations are to trial notes or audio recordings unless otherwise noted.