This pro se inmate's claim for the loss of personal property following transfer to the Special Housing Unit was dismissed following trial.
|Claimant short name:||BYRD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Raheme Byrd, Pro Se|
|Defendant's attorney:||Honorable Barbara D. Underwood, Acting Attorney
By: Christina M. Calabrese, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 16, 2018|
|See also (multicaptioned case)|
A trial of the claim herein was held on February 7, 2018. The claim alleges that certain items of claimant's personal property were missing after his possessions were packed in his cell following an altercation with another inmate.
Claimant testified at trial that on May 1, 2013 he was involved in a physical altercation with another inmate which resulted in his immediate confinement to the Great Meadow Correctional Facility (Great Meadow) Special Housing Facility (SHU). Following a four-month term in the SHU, claimant was transferred to the Elmira Correctional Facility. Prior to his transfer, the claimant witnessed an inmate packing his property in the Great Meadow package room and observed that his eight-inch color TV and various other property was missing. According to the claimant he purchased the color TV on March 7, 2012 for approximately $150.00. In addition, claimant alleges that the property returned to him failed to include two pairs of Adidas sneakers ($50.00 each), two shirts ($37.00 each [approx.]), a fan purchased in April 2012 ($10.00), and a Norelco trimmer purchased the same year. Claimant failed to provide any receipts for the above property at trial.
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 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 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).
Notwithstanding claimant's testimony regarding the loss of a fan and a Norelco trimmer, these items were not claimed as part of the loss in either the claim filed in the Court of Claims or his administrative claim. With respect to the remaining property which claimant alleges was removed or stolen from his cell, claimant failed to establish ownership and possession of this property at the time of the incident. While claimant did proffer a Marking Permit for the TV dated March 7, 2012, no evidence establishes that the TV was in his cell at the time of the incident more than one year later. To the contrary, a memorandum from Correction Officer Warner dated June 28, 2013 indicates there was no TV present when he packed claimant's cell "for SHU processing" and "all known property was packed and nothing was neglected" (Memorandum dated June 28, 2013). Consequently, claimant failed to meet his burden of establishing by a preponderance of the credible evidence that the property which is the subject of the claim was delivered to the defendant but not returned.
Accordingly, the claim is dismissed.
Let judgment be entered accordingly.
May 16, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims