|Claimant short name:||HERNANDEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||NUMA HERNANDEZ
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Acting Attorney General for the State of New York
By: Christina Calabrese, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 10, 2018|
|See also (multicaptioned case)|
The trial of this claim was heard on January 25, 2018 via video-conferencing technology.
Claimant testified on his own behalf and claimant's exhibits 1 through 10 were received into evidence. Defendant presented the testimony of Correction Officer Richard Brennan and defendant's exhibits A through J(1) were received in evidence.
On July 18, 2016, during claimant's incarceration at Greene Correctional Facility (Greene), claimant's property was packed into draft bags by Correction Officer Brennan. Claimant was not present during the packing because claimant was transferred from his cell in general population to the Special Housing Unit (SHU). On July 21, 2016, claimant received the draft bags of his property that had been transferred to SHU and claimant and Correction Officer Brennan signed an I-64 form to confirm claimant's receipt of the property listed on the form (Defendant's Ex. G). Claimant believed that some of his property was missing. On July 24, 2016, claimant filed an Inmate Claim Form with Greene detailing the allegedly missing items and claimant's estimated value of those items (Claimant's Ex. 4). The institutional claim and the subsequent appeal were denied based on the finding that claimant signed an I-64 form indicating receipt of all his property (id.). Thereafter, claimant filed the instant claim in the Court of Claims seeking damages for his lost items and the mental anguish and stress he endured in seeking reimbursement for his lost items.
The State, as a bailee of an inmate's personal property, owes a common law duty to secure the property in its possession (see Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). A rebuttable presumption of negligence arises where it is established that the property was delivered to defendant with the understanding that it would be returned to claimant and that defendant subsequently failed to return the property or returned it in a damaged condition (see Reed v Cornell Univ., 138 AD3d 816 [2d Dept 2016]). Claimant's failure to make a prima facie showing requires dismissal of the claim. If, however, claimant makes a prima facie showing, then there is a presumption of liability and the burden shifts to defendant to come forward with evidence to overcome the presumption by establishing a non-negligent explanation for the loss of claimant's property.
In this matter, defendant maintains that all of claimant's property was appropriately packed and delivered to him in SHU as evidenced by the I-64 form signed by claimant and Correction Officer Brennan (Defendant's Ex. G). Specifically, defendant maintains that the I-64 form evidenced a delivery of all of claimant's food items because the form noted that claimant signed for five food storage containers (id.). Defendant further argues that claimant should not be awarded damages for items which he was not authorized to possess at Greene, such as a hot pot, a beard trimmer and a Social Security card. Additionally, defendant maintains that claimant should not be awarded damages for any items which claimant cannot prove that he possessed prior to the packing and/or their value at the time of the alleged loss.
Claimant testified on his own behalf and presented the permits for his possession of a hot pot and a beard trimmer, both of which were issued to him during his incarceration at Eastern NY Correctional Facility (Eastern) (Claimant's Exs. 1, 2). Claimant also presented receipts for food items he purchased at Greene on June 16, 2016, June 30, 2016 and July 8, 2016 (Claimant's Ex. 3; Defendant's Ex. J).
Correction Officer Richard Brennan testified that he was present when claimant signed the I-64 form confirming receipt of his property in SHU as listed on the I-64 form (Defendant's Ex. G). Brennan also signed the I-64 form and maintains that all of claimant's property was accounted for and that nothing was missing.
Upon consideration of all the evidence presented, including listening to the witnesses testify and observing their demeanor as they did so, the Court makes the following findings.
Claimant concedes that he did not have a local permit from Greene for a hot pot or a beard trimmer. He further acknowledged on cross-examination that, without a local permit, he could not possess those items at Greene. Nonetheless, claimant maintains that he did possess those items at Greene and he pointed to the permits that were issued to him at Eastern (Claimant's Exs. 1, 2). Notably, those permits expressly state that if claimant is transferred to another facility, and the permit is not valid at that facility, claimant will dispose of the items (id.). The Claim Investigation Report generated at Greene states that claimant did not have any local permits for a hot pot or a beard trimmer (Claimant's Ex. 6). Accordingly, the Court finds that claimant is not entitled to an award for the loss of a hot pot or a beard trimmer because he did not establish that he had a local permit to possess those items at Greene.
Similarly, the Court makes no award for the alleged loss of claimant's Social Security card. Claimant conceded that he was not authorized to possess a Social Security card which he claims to have received in the mail.
The I-64 form clearly indicates that claimant received "all" of his legal papers and claimant's testimony did not effectively refute this documentation (Claimant's Ex. 5). Thus, the Court finds that claimant is not entitled to any award for a loss of legal papers.
The Court finds claimant to be credible regarding his testimony that he paid for 125 pages of his medical records to be copied at $.50 per page for a total of $62.50 and that those records were not returned to him. Accordingly, the Court also finds that claimant is entitled to an award of $62.50 for the loss of 125 pages of his medical records (id.).
With regard to claimant's photographs, the Court cannot speculate as to the fair market value of claimant's photographs and the record is devoid of the reproduction costs for said photographs. Accordingly, the Court makes no award for claimant's 20 "Click Click" photographs and the 50 photographs received by claimant from his relatives (Claimant's Ex. 4).
The I-64 form indicates that claimant received six soap bars (Defendant's Ex. G). Claimant, however, testified that the six soap bars listed on the I-64 form differed from the 10 bars of Dove soap that he claims to have lost. He estimated the cost of the Dove soap as $2.00 each. The Court finds that claimant is entitled to an award of $8.00 for four lost Dove soap bars (Claimant's Ex. 4, item 8).
On cross-examination, defendant confronted claimant with the I-64 form indicating that claimant had received five food storage containers. Claimant testified that his food was not within those containers. Rather, the containers were filled with pots, bowls and cooking utensils. With regard to the food items for which claimant seeks damages, claimant circled the food items on his receipts dated June 16, 2016, June 30, 2016 and July 8, 2016 (Claimant's Ex. 3; Defendant's Ex. J). The circled items and their costs are as follows:
(id.). The Court credited claimant's testimony and finds that he is entitled to an award of $20.00 for his lost food items as circled on his receipts (id.).
Claimant testified that the circled items on the receipt included all the items which were not returned to him, except for 20 cans of random food from Walmart or Costco that cost more than 85 cents each. The Court credits claimant's testimony and finds that claimant is entitled to an award of $17.00 for his 20 lost cans of random food.
In sum, the Court finds that claimant is entitled to an award of $107.50, inclusive of interest, for his lost property.
The Court finds that claimant has failed to establish any basis for awarding him money damages for his alleged mental anguish and distress in seeking reimbursement for his lost property (see Lauer v City of New York, 95 NY2d 95 ; Ellison v City of New Rochelle, 62 AD3d 830 [2d Dept 2009]).
It is further ordered that, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a (2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
May 10, 2018
White Plains, New York
Judge of the Court of Claims
1. Defendant's exhibit I is the same as claimant's exhibit 2.