|Claimant short name:||TEXIDOR|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||MICHAEL TEXIDOR, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Heather Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 6, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim alleging that defendant's agents were negligent in failing to safeguard his personal property in his cell at Green Haven Correctional Facility (CF) in January 2013. The trial of this claim was conducted on October 18, 2018 at Green Haven CF in Stormville, New York. Claimant presented his testimony and offered six exhibits that were received into evidence. Defendant presented no witnesses and offered three exhibits that were received into evidence. After listening to claimant testify and observing his demeanor as he did so, and upon consideration of that evidence and the documentary evidence received at trial and the applicable law, the Court concludes that defendant is not liable to claimant. FACTS
Claimant testified that he was in the west side yard at Green Haven CF on January 8, 2013 when he was told by Sergeant White that there had been a fire in his cell, and he was escorted to protective custody. A Department of Corrections and Community Supervision (DOCCS) "Report of Fire" form reflects that the fire was intentionally set, and that toilet paper or paper towel had been placed under a corner of claimant's mattress to start the fire (see Defendant's Exhibit C). In a To/From memorandum dated May 2, 2013, Correction Officer (CO) Clements stated that he packed "all property" from claimant's cell on January 8, 2013, that he conducted a search of the cell and "emptied and packed all items from the locker" and filled out an I-64 (Personal Property Transferred) form for all of the property in the cell (see Defendant's Exhibit A). The I-64 form reflects that claimant's property was inventoried and packed at his cell (B-225) on January 9, 2013 by CO Clements, and that claimant was "not present" when the bags were packed (see Claimant's Exhibit 3). Claimant testified that CO Clements brought him his personal property on January 10, 2013 and told him that he had to sign the I-64 form before he would be given his property, so claimant signed the form without checking the contents of the property bags. CO Clements completed an undated To/From memorandum stating that on January 8, 2013 he packed "all undamaged property" from claimant's cell and transported all of the property to claimant, who signed for the property (see Defendant's Exhibit B). Claimant testified that he subsequently noticed that a radio, eyeglasses, cigarettes, postage stamps and several other items were not in the property bags and were not inventoried on the I-64 form (see Claimant's Exhibit 3). Claimant submitted an administrative claim seeking compensation in the amount of $341.97 for his missing personal property (see Claimant's Exhibit 1), which was disapproved on March 6, 2013 on the ground that "[e]vidence indicates that the facility was not at fault or in any way responsible for the loss," with the explanation that "Officer's statement all property was packed." The administrative claim form contains an appeal statement dated March 29, 2013, that is unsigned and which does not indicate that any determination was made on claimant's appeal (see id.).
Assuming that the Court has subject matter jurisdiction to entertain the claim,(1) claimant's primary argument at trial was that defendant was negligent in failing to adequately secure the area of his cell (see Foy v State of New York, 182 AD2d 670 [2d Dept 1992]). This theory of liability is unavailing when, as here, there was no evidence that the missing property was secured in the locker in claimant's cell (see Foy v State of New York, UID No. 2001-016-217 [Ct Cl, Marin, J., Jan. 9, 2002]; cf. Pollard v State of New York, 173 AD2d 906 [3d Dept 1991] [State liable for property secured in a locker in a locker room]). Here, claimant's cell was clearly left accessible to others, as someone entered his cell in his absence to start the fire, and defendant will not be held liable for lost property that was left unsecured by claimant.
To the extent that the claim sounds in negligent bailment, the State has a bailee's common-law duty to secure the property of inmates within its prison system and it may be liable for a breach of that duty (see Pollard v State of New York). A prima facie case of negligent bailment requires evidence that the claimant's property was in the custody of facility officials, and that the property was not returned to claimant (see Gillard v State of New York, UID No. 2010-044-008 [Ct Cl, Schaewe, J., June 21, 2010], citing Mack v Davidson, 55 AD2d 1027 [4th Dept 1977]; see also Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]). A prima facie showing creates a presumption of negligent bailment, and shifts to defendant the burden to demonstrate that it exercised ordinary care or that the property was lost due to circumstances not within its control (see Alston v State of New York, 9 Misc 3d 1126[A], *2-*3 [Ct Cl 2005]; Jackson v State of New York, UID No. 2007-044-010 [Ct Cl, Schaewe, J., Mar. 22, 2007]).
Defendant will not be found liable for negligent bailment of claimant's property. As claimant testified, and as confirmed by the I-64 form in evidence (see Claimant's Exhibit 3), the missing items were not among those inventoried and listed on the I-64 by CO Clements. Although claimant credibly testified at trial that he possessed the missing property the night prior to the fire in his cell, there was no evidence that he still possessed the missing items at the time of the fire the next morning, nor was there any proof that defendant's agents came into possession of those items after the fire. There was proof at trial that claimant's cell was left unattended prior to the fire and, as noted above, there was no evidence that the missing items were secured in his locker. Thus, while it is possible that the loss was due to an omission by defendant's agents during the packing of his property shortly after the fire, it is equally possible that the missing items were taken by anyone who had access to his cell prior to or during the extinguishment of the fire (cf. Lopez v State of New York, UID No. 2018-038-106 [Ct Cl, DeBow, J., Apr. 11, 2018] [property packed after fire and left unattended several days prior to being inventoried]). Thus, claimant has not met his burden of showing by a preponderance of the credible evidence that the missing items came into defendant's possession.CONCLUSION
Assuming that the Court has subject matter jurisdiction over the claim, claimant has failed to prove by a preponderance of the credible evidence that defendant was negligent. Accordingly, claim number 123109 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk is directed to enter judgment accordingly.
December 6, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. The administrative claim form that was received into evidence as Claimant's Exhibit 1 demonstrates that while the administrative claim was disapproved on March 6, 2013, claimant did not appeal the disapproval within five working days as required by DOCCS regulations (see 9 NYCRR 1700.4 [d]). Moreover, the appeal statement in the administrative claim form that is dated March 29, 2013 is unsigned and it bears no indicia that a determination was rendered on his appeal. Thus, claimant's own evidence raises questions as to whether claimant exhausted his administrative remedies as required by Court of Claims Act § 10 (9), and whether the Court has subject matter jurisdiction over the claim (see Williams v State of New York, 38 AD3d 646, 647 [2d Dept 2007] [failure to exhaust administrative remedies deprives Court of subject matter jurisdiction]).