New York State Court of Claims

New York State Court of Claims
RIVERA v. THE STATE OF NEW YORK, # 2018-038-118, Claim No. 122822

Synopsis

After trial, claimant awarded $740.11 for personal property lost during incarceration.

Case information

UID: 2018-038-118
Claimant(s): BRIAN RIVERA 07A5713
Claimant short name: RIVERA
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 122822
Motion number(s):
Cross-motion number(s):
Judge: W. BROOKS DeBOW
Claimant's attorney: BRIAN RIVERA, Pro se
Defendant's attorney: BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 12, 2018
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for personal property that was allegedly lost by employees of defendant at Green Haven Correctional Facility (CF) in October 2012. The trial of this claim was conducted on October 18, 2018 at Green Haven CF in Stormville, New York. Claimant presented his testimony and five of the six exhibits he offered were received into evidence; defendant offered no witnesses or exhibits. 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 liable to claimant in the amount of $715.11.FACTS

Claimant testified that on October 20, 2012, while incarcerated at Green Haven CF, he was transferred from general population to Involuntary Protective Custody (IPC) and was escorted from his cell in G Block to a new cell in A Block. Claimant testified that he had five personal property bags and one legal bag on G block and that three of his personal property bags were missing when his property was brought to him later that day. Claimant testified that he was not in his cell in G Block when they packed up his property to bring it to him, and that the property that he did receive consisted mainly of State property. Claimant filed an administrative claim seeking compensation in the amount of $769.91 for 22 categories of missing property, in which he described the loss as follows:

"On October 20th 2012 at app. 1:45pm [claimant] was taken from G-Block [] within G.H.C.F. escorted to the clinic and at app. 2:30pm arrived in A-Block []. Upon arriving in A-Block I inquired about my property to which the officer escorting me replyed [sic] 'It is being searched and will arrive later this evening.' Prior to being escorted from G-Block all of my property was accounted for in full, was packed and sealed with bag tags personally by myself. A Sgt D. Malark, inquired and announced that my property was packed and his officer is a witness, only minutes after arriving at the clinic app. 2:00pm. At app. 6:00pm that evening an officer arrived by cart with 3 bags of property in draft bags. Originally arriving at G.H.C.F. I had the allowed 4 bags plus 1 legal bag which I paid for."

(Claimant's Exhibit 2). Numerous sales receipts for the vast majority of the items for which claimant seeks compensation were admitted into evidence (see Claimant's Exhibit 4), as were facility permits for the missing items that required a permit to possess (see Claimant's Exhibit 5) DISCUSSION

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, 173 AD2d 906 [3d Dept 1991]). To make a prima facie case of negligent bailment, an inmate claimant must establish that his or her personal property was in the custody of facility officials and that the property was not delivered 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 case 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]).

The Court credits claimant's testimony that prior to his transfer to A-Block on October 20, 2012, he possessed all of the items of property for which he seeks compensation. He gave extremely credible testimony which is predominantly corroborated by the sales receipts and facility permits and by the I-64 form that claimant signed when he arrived at Green Haven CF on July 18, 2012 (see Claimant's Exhibits 1, 6). The evidence further establishes that the missing items were in sealed property bags which were subsequently opened and searched (see Claimant's Exhibit 6, p.24A). Defendant's argument that claimant failed to prove his ownership of some of the items because there is no documentation that he owned everything that he claims to have lost is simply unpersuasive because, as noted above, nearly all of the items claimed are reflected in sales receipts and the I-64. Claimant's credible testimony establishes not only that he owned the items, but that the missing items came into defendant's possession and were not subsequently delivered to claimant in A-block, thereby establishing a prima facie case of negligent bailment with regard to all of the items for which he seeks compensation. Defendant offered no evidence or argument that it exercised due care or that the loss was due to circumstances not within its control, and has thus failed to rebut claimant's prima facie case of negligent bailment.

The measure of liability for negligently bailed property is its fair market value, which is measured by purchase price minus 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 No. 2007-030-019 [Ct Cl, Scuccimarra, J., June 18, 2007]). Claimant's testimony about the amounts paid for the lost items of property and the approximate age and condition of the items at the time of their loss was generally credible and is overwhelmingly supported by receipts, and none of this proof has been persuasively contradicted by defendant. Therefore, the Court finds that claimant has proven his claim for negligent bailment and damages by a preponderance of the credible evidence, and claimant's loss is valued as follows:

(1) One brand new table radio, purchase price of $59.95, approximately one month old; the Court assigns a depreciation of 1% and values the loss at $59.35;

(2) One pair of headphones, purchase price of $24.99,(1) approximately three years and ten months old, in very good condition; the Court assigns a depreciation of 25% and values the loss at $18.74;

(3) One beard trimmer, purchase price of $21.95, approximately two years and six months old, in fair condition; the Court assigns a depreciation of 25% and values the loss at $16.46;

(4) One rarely used hot pot, purchase price of $15.49, approximately three years and nine months old; the Court assigns a depreciation of 10% and values the loss at $13.94;

(5) One fan, purchase price of $10.50, approximately four years and six months old, in good condition; the Court assigns a depreciation of 25% and values the loss at $7.88;

(6) One AM/FM radio with cassette player, purchase price of $29.95, approximately four years and seven months old, in very good condition; the Court assigns a depreciation of 40% and values the loss at $17.97;

(7) A power adapter, purchase price of $7.50, approximately four years and seven months old, in very good condition; the Court assigns a depreciation of 30% and values the loss at $5.25;

(8) One wedding band, purchase price of $66.92, approximately one year five months old, almost never been worn; the Court assigns no depreciation and values the loss at $66.92;

(9) Food packages and commissary purchases, purchase price of $136.00, purchased in the week before the loss; claimant testified that the majority of the packages were unopened; the Court assigns a depreciation of $36.00, the amount listed by claimant in the administrative claim (see Claimant's Exhibit 2), and values the loss at $100.00;

(10) Ten magazines, purchase price of $120.00, purchased monthly in the ten months preceding the loss; the Court assigns a depreciation of 33% and values the loss at $80.00;

(11) One sheet set, purchase price of $20, approximately four to five months old, in its original packaging and never opened; the Court assigns no depreciation and values the loss at $20.00;

(12) One blanket set, purchase price of $21.95, approximately four to five months old, in its original packaging, and never opened; the Court assigns no depreciation and values the loss at $21.95;

(13) Two brand new packages of cocoa butter lotion, purchase price of $9.00, approximately four months old, never opened; the Court assigns no depreciation and values the loss at $9.00;

(14) Three brand new sticks of deodorant and baby oil, purchase price of $12.00, approximately four months old, never opened; the Court assigns no depreciation and values the loss at $12.00;

(15) Two sweat suits, purchase price of $50.00, approximately nine months old, in good condition; the Court assigns a depreciation of 25% and values the loss at $37.50;

(16) Two sweaters, purchase price of $50.00, approximately ten months old, in good condition; the Court assigns a depreciation of 25% and values the loss at $37.50;

(17) Four unopened packs of cigarettes, purchase price of $35.20, bought shortly before the loss, the Court assigns no depreciation and values the loss at $35.20;

(18) Two long-sleeved T-shirts, purchase price of $25.00, approximately four months old, worn only two or three times; the Court assigns a depreciation of 20% and values the loss at $20.00;

(19) Towel and washcloth, purchase price of $20.00, approximately four months old, in fairly good condition; the Court assigns a depreciation of 10% and values the loss at $18.00;

(20) Three collared shirts, purchase price of $50.00, approximately 11 months old, in good condition; the Court assigns a depreciation of 25% and values the loss at $37.50;

(21) Two brand new hooded sweatshirts, purchase price of $30.00, approximately four months old, never worn; the Court assigns no depreciation and values the loss at $30.00;

(22) One brand new pair of boots, purchase price of $49.95,(2) approximately four months old, never worn; the Court assigns no depreciation and values the loss at $49.95;

CONCLUSION

Defendant is liable to claimant for lost property in the amount of $715.11, with statutory interest from October 20, 2012. Any motions not previously ruled upon are denied. To the extent that claimant has paid a filing fee, it is recoverable pursuant to Court of Claims Act  11-a (2).

The Clerk of the Court of Claims is directed to enter judgment accordingly.

December 12, 2018

Saratoga Springs, New York

W. BROOKS DeBOW

Judge of the Court of Claims


1. Although claimant's administrative claim asserts a value of $36.95 for the headphones (see Claimant's Exhibit 6, p.24A), the receipt in evidence demonstrates that he paid $24.99 for the headphones (see Claimant's Exhibit 4, p.13)

2. The boots are valued based upon the receipt in evidence (see Claimant's Exhibit 4, p.15), and not the amount of $50.00 stated in claimant's administrative claim (see Claimant's Exhibit 6, p.24B).