Claim for compensation for lost property granted in part. Even though claimant signed an I-64 form indicating that he had received all of his property after a transfer to involuntary protective custody, his credible testimony at trial established that he had not received certain items. Claimant awarded $44.75 for the depreciated value of the lost items.
|Claimant short name:||STEWART|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||AL-FATAH STEWART, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 16, 2017|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for lost personal items. The trial of this claim was conducted by videoconference on July 20, 2017, with the parties appearing at Green Haven Correctional Facility (CF) in Stormville, New York and the Court sitting in Saratoga Springs, New York. Claimant presented his own testimony; defendant presented the testimony of Department of Corrections and Community Supervision (DOCCS) Correction Officer (CO) Greg Trembath. Claimant offered one exhibit that was received into evidence; defendant offered no exhibits.(1) After listening to the witnesses testify and observing their demeanor as they 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 $44.75.
Claimant testified that he was in keeplock at Green Haven CF on February 28, 2011 when he was stabbed in his cell and was thereafter taken to the Involuntary Protection Custody (IPC) unit. Claimant testified that his property in his cell was subsequently packed and brought to him by Correction Officer (CO) Korycinski. Claimant testified that when he surveyed his property he noticed that some items were missing, specifically 264 family photographs, one pair of boots, a hot pot, a fan, fifty postage stamps, headphones, and a Sony Walkman. Claimant testified that he informed CO Korycinski that he was missing property, and was told that CO Korycinski had packed up everything that remained in claimant's cell after it had been searched. Claimant testified that CO Korycinski told him that when he arrived at the cell to pack up claimant's property, the gate to the cell was open which, claimant testified, violated procedures that require the cell to be chained until an inventory officer arrives to pack up the inmate's property. A Personal Property Transferred (I-64) Form executed by claimant and CO Korycinski on February 28, 2011 reflects that seven bags of inventoried property contained, as relevant to this claim, one pair of boots, one radio/tape player combo, and 50 photographs, but they did not contain a hot pot, a fan, postage stamps or a pair of headphones (see Claimant's Exhibit 1-A).
CO Trembath, whose responsibilities include packing and issuing property to inmates at Green Haven CF, testified that when inmates are transferred from keeplock to the IPC unit, their cell is secured by the block officer with a chain and lock, and that the property in their cell is thereafter secured, inventoried on an I-64 form, bagged and then taken to the inmate who signs the I-64 form after inspecting and receiving the property. CO Trembath testified that in his experience, if items are missing from a property bag, the inmate will usually refuse to sign the I-64 form indicating receipt, and that a supervisor would be brought in.
Claimant filed an administrative claim seeking recovery in the amount of $6,763.99 for the missing items (see Claimant's Exhibit 1, at p.1), which was rejected and disapproved on April 12, 2011 on the grounds that the claim value was not substantiated, and that the evidence indicated that the facility was not at fault and that "all property [was] packed" (id.).(2)
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 failing to carry out that duty (see Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). To establish 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]).
At trial, claimant credibly testified that prior to his transfer from his cell in keeplock to the IPC unit on February 28, 2011, he owned all of the personal property for which he seeks compensation. The I-64 form that claimant signed that day demonstrates that the hot pot, fan, postage stamps, headphones and 264 photographs were not delivered to him in the IPC unit, and he has thus made out a prima facie case of negligent bailment with regard to these items. However, inasmuch as the I-64 form reflects that one pair of boots and one radio/tape player combo were delivered, and as claimant did not testify that he had more than one pair of boots or a radio/tape player, he has not made out a prima facie case of negligent bailment with regard to the boots and Sony Walkman. CO Trembath's testimony that inmates usually refuse to sign the I-64 form if there is property missing does not rebut the presumption of negligent bailment, especially here, as the Court credits claimant's testimony that he owned but did not receive a hot pot, a fan, stamps and headphones notwithstanding his signature on the I-64 form.
The measure of compensation for bailed property that is not returned is its fair market value (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 credible testimony reflects the amounts paid for the lost items of property, and the approximate age and condition of the items at the time of their loss, and defendant has not persuasively contradicted any of claimant's proof. Therefore, the Court finds that claimant has proven by a preponderance of the credible evidence the fair market value of the following items that are recited in the administrative claim, and claimant's loss is valued as follows:
(1) One fan, with a total fair market value of $10.00, that was approximately eight years old in good condition; the Court assigns a depreciation of 50% and values the loss at $5.00;
(2) One hot pot, with a total fair market value of $17.00, that was approximately four years old in good condition; the Court assigns a depreciation of 25% and values the loss at $12.75;
(3) Fifty postage stamps, with a total fair market value of 44 cents each, or $22.00; the Court assigns no depreciation and values the loss at $22.00;
(4) One pair of headphones, with a total fair market value of $10.00, that was approximately ten years old in good condition; the Court assigns a depreciation of 50% and values the loss at $5.00;
Claimant seeks recovery for 264 family photographs which undoubtedly have sentimental value, and notwithstanding that claimant has assigned them each a value of $25.00, such items have no fair market value upon which an award can be made in a bailment claim (see Encarnacion v State of New York, UID No. 2012-049-111 [Ct Cl, Weinstein, J., Sept. 27, 2012]; Kidd v State of New York, UID No. 2004-030-044 [Ct Cl, Scuccimarra, J., Nov. 22, 2004]). Further, although claimant testified that some of the photographs were taken at Green Haven CF and he was charged $2.00 per photograph, claimant did not know how many of the 264 photographs fell into this category, and it would be speculative for the Court to make an award for reproduction costs (compare Young v State of New York, UID No. 2017-038-106 [Ct Cl, DeBow, J., Apr. 10, 2017], citing Powell v State of New York, UID No. 2016-015-615 [Ct Cl, Collins, J., Aug. 16, 2016]; Davies v State of New York, UID No. 2014-039-410 [Ct Cl, Ferreira, J., May 23, 2014]).
CONCLUSION Defendant is liable to claimant for lost property in the amount of $44.75, with statutory interest from February 28, 2011. 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.
November 16, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. After trial, the Court requested and received from defendant clearer copies of a Personal Property Transferred (I-64) Form that was included in Claimant's Exhibit 1, which is received in evidence without objection as Claimant's Exhibit 1-A.
2. Claimant took an administrative appeal from the disapproval of his claim on April 13, 2011, but an administrative decision on that appeal was not offered into evidence at trial.