|Claimant short name:||SALAAM|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||RASOOL SALAAM, Pro se|
|Defendant's attorney:||ANDREW M. CUOMO, Attorney General of the State of
By: Belinda A. Wagner, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 29, 2010|
|See also (multicaptioned case)|
Claimant, an inmate in a State correctional facility, filed this claim seeking damages for personal property that was allegedly destroyed by officials at Upstate Correctional Facility (CF) in December 2001. The trial of this claim was conducted by videoconference on November 10, 2009, with the parties appearing at Clinton Correctional Facility (CF) in Dannemora, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony, and defendant offered the testimony of Department of Correctional Services (DOCS) Lieutenant Jerry Laramay. Claimant offered six documents and defendant offered three documents, all of which were received in evidence.
The State has a bailee's common-law duty to secure the property of inmates within the State's prison system, and it may be held liable for failing to carry out that duty (see Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). An inmate may assert a claim against the State sounding in negligent bailment (see id.). To establish a prima facie case of negligent bailment, a claimant must establish that he or she delivered property to facility officials and that the property was not returned (see Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; Alston v State of New York, 9 Misc 3d 1126[A], *2-*3). An inmate's establishment of a prima facie case creates the presumption of a negligent bailment, and shifts the burden to the State to demonstrate that the loss was due to circumstances not within its control or that the property was damaged without its fault, or by establishing that it exercised ordinary care (see Alston, supra at *3; Jackson v State of New York, UID # 2007-044-010, Claim No. 109373, Schaewe, J. [Mar. 22, 2007]).
The instant claim seeks compensation in the amount of $260.65 for the loss of books and Muslim journals. The testimony of the witnesses and the documentary evidence demonstrated the following. On October 2, 2001 claimant, while incarcerated at Upstate CF, authorized the disposal of certain items of excess personal property by executing a Form 2068 (Defendant's Exhibit A). As pertinent to this claim, claimant shipped at his expense a package containing nine books and six Muslim journals to his niece who lived in Schenectady, New York. On December 2, 2001 claimant was visited by his sister and father, who brought claimant four books which were left in the Upstate CF package room. During this visit, claimant asked his sister if his niece had received the package he sent in October and was informed that the package had not been delivered.
On December 3, 2001 Correction Officer (CO) Champaigne delivered to claimant the four books his father had brought the previous day. CO Champaigne asked claimant to sign for the books on a package log next to the entry for the package that claimant had sent to his niece but had been returned to Upstate CF as "unclaimed" on October 25, 2001 (Claimant's Exhibit 5, at 1). Claimant refused to sign next to that entry, and instead signed for the books next to the entry for the four books that were delivered the previous day by his father (id. at 2). Claimant asked CO Champaigne what had happened to the package that had been returned, but CO Champaigne did not know (Claimant's Exhibit 6 and Defendant's Exhibit B).
On December 3, 2001 claimant filed an Inmate Claim Form seeking compensation for the books and Muslim journals that were in the package that was returned to Upstate CF (see Claimant's Exhibit 6 and Defendant's Exhibit B). Lt. Jerry Laramay - who held the position of Sergeant in December 2001 - testified that he investigated claimant's claim and discovered that the package was in the Upstate CF package room. Lt. Laramay testified that on December 9, 2001 he gave claimant the option of sending the package out again to another address, which claimant refused to do. Claimant testified that he did not remember Lt. Laramay coming to his cell, and did not recall having been given the option of re-sending the package. Lt. Laramay testified that since claimant refused to make a decision as to what to do with the package, Laramay decided on December 9, 2001 that it be sent to the Executive Offices for disposition, where the package was subsequently destroyed. DOCS Directive 4913 was received in evidence as claimant's Exhibit 1, and it was not controverted that this Directive was in effect in December 2001. Section II (B)(2) of Directive 4913 provided in pertinent part that an inmate's failure to elect how to dispose of the property or refusal to sign a Form 2068 directing how the property was to be disposed would result in the destruction or disposal of the excess property, but only after the inmate is allowed 48 hours to elect how to dispose of the excess personal property (Claimant's Exhibit 1, at 2).
At trial, claimant proved by a preponderance of the credible evidence that he delivered property to Upstate CF officials that was intended to be sent through the mail to his niece, that the property was eventually returned to the Upstate CF package room, and that the property was not returned to him. Claimant having met his prima facie burden, the burden has shifted to defendant to demonstrate that the loss was not due to its fault. Defendant attempted to demonstrate that it was authorized to destroy the property by adducing evidence that claimant was given the opportunity to re-send the package but refused to make a choice as to how to dispose of the property. Whether claimant was told that the property was in the package room and given the option of how to dispose of the property is subject to dispute. However, it is undisputed that Lt. Laramay's decision to dispose of claimant's property on the same day that he allegedly gave claimant the option of how to dispose of his property was not in compliance with Directive 4913, as claimant was not afforded 48 hours to determine how to dispose of the property. Accordingly, as defendant's agents failed to comply with Directive 4913, it was without authority to order the destruction or other disposition of claimant's property. Defendant has adduced no evidence nor argued that the disposal of claimant's property was otherwise authorized or permissible, and thus, defendant has failed to rebut claimant's prima facie showing of negligent bailment. Defendant is therefore liable to claimant for his loss of the property.
The measure of recovery when bailed property is not returned is its fair market value, i.e. the original purchase price of the property less reasonable depreciation (see Phillips v Catania, 155 AD2d 866 [4th Dept 1989]). "Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable" (Rush v State of New York, UID #2007-030-019, Claim No. 110361, Scuccimarra, J. [June 18, 2007]). Claimant's testimony identifying the lost items and the amount he paid for them by reference to the Inmate Claim Form that he completed on December 3, 2001 (see Claimant's Exhibit 6 and Defendant's Exhibit B) was uncontradicted. The copies of the Inmate Claim Form that the Court received in evidence and the copies that defendant's counsel subsequently sent to the Court and claimant at the request of the Court at trial are very faint, and the Court was unable to decipher the titles of some of the nine books, although the amount he paid for each one of the nine books and six Muslim journals is legible. Claimant testified that all of the items were in good condition with very little wear and tear. Further, the Inmate Claim Form describes each item as being in "good" condition and identifies the age of each of the items, with the oldest item being eight months old at the time of the loss. Therefore, the Court finds that claimant proved by a preponderance of the credible evidence the fair market value of the following items, and claimant's loss is valued as follows:
(1) Book entitled "Transition Mathematics" (4 months old) valued at $35.25; the Court assigns a depreciation of 10%, and values the loss at $31.72.
(2) Book entitled "Black Genius" (8 months old) valued at $27.50; the Court assigns a depreciation of 20%, and values the loss at $22.00;
(3) Book with an undecipherable title (3 months old) valued at $24.95; the Court assigns a depreciation of 10%, and values the loss at $22.45;
(4) Book entitled "Prophet of Rage" (3 months old) valued at $25.00; the Court assigns a depreciation of 10%, and values the loss at $22.50;
(5) Book entitled "The System" (8 months old) valued at $25.95; the Court assigns a depreciation of 20%, and values the loss at $20.76;
(6) Book with an undecipherable title (4 months old) valued at $22.00; the Court assigns a depreciation of 10%, and values the loss at $19.80;
(7) Book with an undecipherable title (4 months old) valued at $25.00; the Court assigns a depreciation of 10%, and values the loss at $22.50;
(8) Book entitled "To Kill the Dream" (8 months old) valued at $25.00; the Court assigns a depreciation of 20%, and values the loss at $20.00;
(9) Book entitled "The Birth of Christ" (3 months old) valued at $20.00; the Court assigns a depreciation of 10%, and values the loss at $18.00; and
(10) Six Muslim Journals (4 months old) valued at $30.00; the Court assigns a depreciation of 10% and values the loss at $27.00.
Claimant is therefore awarded damages in the amount of $226.73 (Two Hundred Twenty-Six Dollars and Seventy-Three Cents) with statutory interest from December 9, 2001. Any and all motions upon which the Court may have previously reserved decision or which were not previously determined are hereby denied. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
The Chief Clerk of the Court is directed to enter judgment accordingly.
January 29, 2010
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims