Pro se inmate's bailment claim was dismissed as he failed to establish that he entrusted his property to prison officials with the expectation that it would be returned.
|Claimant short name:||CLAY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Daniel Clay, Pro Se|
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Douglas R. Kemp, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 8, 2017|
|See also (multicaptioned case)|
The claim filed on February 1, 2013, alleges the claimant was denied certain personal property upon his transfer to Great Meadow Correctional Facility (Great Meadow) in September 2012. A trial of this matter was held on September 14, 2017.
The claimant testified at trial that he was transferred to Great Meadow in September 2012. Upon his arrival, his personal property was processed by facility personnel who advised claimant that he was not permitted to possess certain art supplies and a black headphone extension cable. Although the claimant apparently signed a document authorizing the disposal of both the art supplies and extension cord, he testified at trial that he was ordered to sign by a correction officer who informed him that he would not receive the balance of his property if the form was not signed.
Claimant filed a grievance concerning his property which was denied in a determination dated October 16, 2012, which noted both that hobby supplies are not permitted at Great Meadow because the facility does not have a hobby shop and that "[a]s per a previous CORC decision dated 9/19/05, headphone extension cables are not allowed and are not listed in Directive 4911" (Exhibit A). Claimant's appeal of the superintendent's decision was denied by the Central Office Review Committee. The claimant argued at trial that Directive 4911 (Exhibit B) is applicable only to items received through the package room and not those brought into a facility as a result of an inmate transfer. He argued that art supplies are not contraband and that similar headphone extension cords are sold in the Great Meadow Commissary. Finally, the claimant argued that Directive 4911 does not contain a complete list of items inmates are able to possess, and that an inmate may therefore possess items such as art supplies and headphone extension cords not addressed by the directive. The claimant was not cross-examined.
The State as a bailee of an inmate's personal property owes a common law duty to secure the property in its possession (Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]; see also 7 NYCRR Part 1700). A rebuttable presumption of negligence arises where it is established that the property was delivered to the defendant with the understanding that it would be returned, and that the defendant failed to return the property or returned it in a damaged condition (7 NYCRR 1700.7 [b]; see also Tweedy v Bonnie Castle Yacht Basin, Inc., 73 AD3d 1455 [4th Dept 2010]; Ramirez v City of White Plains, 35 AD3d 698 [2d Dept 2006]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 [3d Dept 1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]). Thereafter, the burden of coming forward with evidence demonstrating that the loss or damage to the property was not its fault is upon the defendant (7 NYCRR 1700.7 [b] ; Tweedy at 1456; Feuer Hide & Skin Corp. at 949; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]; Weinberg at 550).
Here, claimant contends in both his claim and post trial brief that he delivered personal property to the defendant with the understanding that it would be returned. However, when he attempted to retrieve his property the following day, he was ordered to sign a 2068 form authorizing the destruction of a light bulb, six hangers, a colored pencil set, a headphone extension cord, and a pastel set. While claimant correctly contends that he was not at liberty to disobey a direct order (see Matter of Hudyih v Smith, 129 AD3d 1435, 1435 [3d Dept 2015], lv denied 26 NY3d 909 , rearg denied 26 NY3d 1097 ; Matter of Amaker v Bezio, 98 AD3d 1146, 1147 [3d Dept 2012]; Matter of Davis v Goord, 301 AD2d 1002, 1003 [3d Dept 2003], lv dismissed 100 NY2d 534 ; Matter of Parrilla v Senkowski, 300 AD2d 870 [3d Dept 2002], lv denied 99 NY2d 510 ), the Court cannot ignore the contrary statements contained in his administrative claim appeal.
The initial denial of the claimant's administrative claim for the destruction of his property reflects that the claim was denied because the "[i]tems [are] not allowed in facility for security reasons . . . [and] inmate voluntarily chose to have items destroyed on 2068 Disposal of Personal Property Form" (claimant's Exhibit B attached to claim). In his administrative appeal, claimant asserted that the items destroyed were not prohibited for security reasons and his authorization to destroy the property was not determinative. On the latter point, claimant stated "I was given options on what would happen to my property after it was taken from me" (id.), but that he had no choice but to authorize destruction of the property because if he shipped the property to a friend "I would pay shipping charges for things that couldn't be mailed back to me. That would make no sense at all" (id). These statements contradict claimants trial testimony that he signed the form authorizing destruction of his personal property only because he was ordered to do so and, instead, evince a conscious act on the part of the claimant. Under these circumstances, the Court finds that claimant consented to the destruction of the property and, therefore, failed to demonstrate by a preponderance of the credible evidence his entitlement to an award of damages.
Let judgment be entered accordingly.
November 8, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims