After a video trial of the pro se bailment claim, the court found defendant liable for negligent bailment of claimant's property at Bedford Hills Correctional Facility and awarded claimant damages in the amount of $98.
|Claimant short name:||TAYLOR|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||STEPHEN J. MIGNANO|
|Claimant's attorney:||TALIYAH TAYLOR, PRO SE|
|Defendant's attorney:||BARBARA D. UNDERWOOD, ATTORNEY GENERAL
By: Matthew H. Feinberg, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 24, 2018|
|See also (multicaptioned case)|
This pro se bailment claim allegedly resulted from defendant's loss of claimant's personal property at Bedford Hills Correctional Facility ("Bedford"). A video trial was held on August 22, 2018. Claimant testified on her own behalf. The court admitted four claimant's exhibits and one defense exhibit. Defendant did not present a case other than the exhibit.
Claimant testified that on November 14, 2016, two packages addressed to her arrived via United States Postal Service (USPS) at the post office in Bedford Hills, New York. Inmates are told to have mail sent to the post office box, and not the facility. Claimant received one package but not the 38 pound, 1.4 ounce package with food. She complained, requested information through FOIL that was not provided, and submitted a grievance and a claim that was denied. She has not received the package.
Claimant's Exh. 1 is comprised of a receipt from Liyahs Goods, Staten Island, New York, the USPS tracking record, and a postal receipt. The receipt from Liyahs Goods lists food items totaling $98.50, with shipping and handling costs of $33.24, for a total amount of $131.74. Claimant is identified as the recipient, and the shipping address is "Bedford Hills Corr. Facility, P.O. Box 1000, Bedford Hills, NY 10507." The postal receipt shows two packages were shipped from a post office in Port Richmond, Staten Island on November 10, 2016. One of the packages had Tracking No. 9505 5143 6674 6315 0165 86 and weighed 38 lbs., 1.4 ozs. The delivery location was the post office in Bedford Hills, New York 10507, and the expected delivery date was November 12, 2016. The cost of shipping was listed as $29.75, plus $3.49 for a box. The postal receipt also provided that the second package, Tracking No. 9505 5143 6674 6315 0165 93, was being sent at a flat rate of $18.75, and was expected to be delivered on the same day at the same location. The USPS tracking record provides that on November 12, 2016, the package with Tracking No. 9505 5143 6674 6315 0165 86(1) arrived at the post office located in Bedford Hills, New York 10507 at 7:22 a.m. and was "Delivered, To Agent" at 8:29 a.m.
Claimant's Exh. 2 is comprised of three pages from her grievance for delayed processing dated November 21, 2016. In it, claimant complains that her cousin shipped her two packages with perishable food that were received at the facility on November 12, 2016 at 8:29 a.m. Claimant was issued one of the packages four days later, and still had not received the second. The third page is a memorandum dated November 30, 2016, advising claimant of her grievance number.(2)
Claimant's Exh. 3 is the three-page inmate claim form. The first page is the claim, dated January 11, 2017, in which claimant describes the package contents, the original cost, plus the cost of shipping and handling. The second page shows the claim was disapproved on January 26, 2018 because, "[t]here is no record of this package arriving at Bedford Hill Corr. Facility," that claimant appealed on January 30, and her appeal was disapproved on February 2, 2018. The third page is an attachment with additional text supplementing claimant's appeal statement.
Claimant's Exh. 4 is a three-page refund request.(3)
On cross-examination, claimant testified that she is seeking payment for the missing package contents, shipping, the filing fee for her claim in this court, and the cost of copying documents for legal filings. Her proof that the facility had possession of the package is that the tracking record shows it was delivered, with the other package, to an agent at Bedford on November 12, and she was called to get the other package on November 16. She also testified that the facility does not pick up packages on Saturdays. Rather, they are picked up the following Monday. The missing package is insured for $50, but she has not made a claim to the post office because a claim cannot be filed for a package that has been picked up.
The court admitted defense Exh. A, comprised of two "to/from" memoranda and a certification. One memo dated January 18, 2018, from Captain Artuz to the Deputy Superintendent for Administrative Services, concerns the property claim submitted by claimant. It states,
"Attached is claim # 120-0082-17. This claim was originally submitted in January of 2017 but was never investigated. Please have this claim investigation immediately, the AG's office is looking for resolution."
The second memo, undated, is to Captain Artuz from Sergeant S. Irwin. It states,
"I investigated the Claim from inmate Taylor 08G1184 concerning [a] lost package. During the week in question the only package received into the facility for inmate Taylor was from [a] Maliyah Rowe 31 Slaight St. Staten [I]sland NY 10302 on 11/14/16. There was no package entered from Liyah's Goods for the week before or after 11/12/16. In 2016 November 12th was a Saturday and the facility does not receive packages from the post office or any other carriers.
This matter was also Grieved by [i]nmate Taylor BH-20, 514-17 and was found there was no proof that the package was picked up from the post office, and was beyond the scope of the grievance office. I met with inmate Taylor and she produced all the
paper work concerning this case for my review.
In conclusion, I could not affirm that the package was delivered to Bedford Hills CF."
Claimant rested. Defendant moved to dismiss the claim. The court reserved on the motion.
"An inmate may assert a negligence claim against the State sounding in bailment, as the State has a common law duty to secure the property of inmates" (Tabares, Jr. v State of New York, UID No. 2008-038-113 [Ct Cl, DeBow, J., Apr. 15, 2008]; see Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). An inmate must prove her ownership of the property in order to establish a prima facie claim of bailment (see Tabares, Jr.). A claimant's burden of establishing a prima facie case of negligence is satisfied once he demonstrates the delivery or constructive delivery of property to defendant, and the defendant's failure to return it to the owner or otherwise deal with the property according to the directions (see Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; Mays v New York, New Haven & Hartford R. R. Co., 197 Misc 1062, 1063-64 [App Term 1st Dept 1950]; Alston v State of New York, 9 Misc 3d 1126[A] [Ct Cl 2005]). " 'It makes no difference whether the thing be intrusted to a person by the owner or by another. Taking lawful possession without present intent to appropriate creates a bailment' " (Wikiert v City of New York, 128 AD3d 128, 133 [2d Dept 2015], lv denied 26 NY3d 902 , quoting Martin v Briggs, 235 AD2d 192, 197 [1st Dept 1997]). "An inmate's establishment of a prima facie case creates the presumption of a negligent bailment, and shifts the burden to the State to demonstrate that the loss was due to circumstances not within its control or that the property was damaged without its fault, or by establishing that it exercised ordinary care" (Bonez v State of New York, UID No. 2008-038-115 [Ct Cl, DeBow, J., May 8, 2008]; see Weinberg at 550; Mason v State of New York, UID No. 2011-044-011 [Ct Cl, Schaewe, J., Dec. 6, 2011]).
The court found claimant credible and well prepared. Defendant does not dispute that: Bedford instructed inmates to have packages sent to a post office box; the two packages were shipped together to the designated post office box with the expected delivery date of Saturday, November 12; both packages were addressed to claimant; Bedford picked up packages from the post office the following Monday, November 14; and claimant was given only one of the two packages on November 16; claimant has repeatedly requested but not received the package; and she did not make an insurance claim because a claim cannot be filed once the package has left the post office. The court finds this is enough to establish prima facie that defendant had either actual or constructive possession of the package.
The court gives little weight to defendant's "investigation" and conclusion there was no written proof that the package had been delivered to the facility. Bedford did not even conduct its investigation until a year after the claim was filed. Further, in New York a defendant may constructively possess property if he has dominion and control over the property as a result of his access to or control over the place where the property is kept (see e.g. People v Manini, 79 NY2d 561, 574  [discussing law of constructive possession in New York as applied to drug possession]; see also People v Diaz, 24 NY3d 1187  [same]; 9 NY JUR 2d Bailments and Chattel Leases § 11  [discussing constructive delivery and listing cases]; Wentworth v Riggs, 79 Misc 400 [1st Dept 1913]; Mack v Davidson, 55 AD2d 1027, 1028 [4th Dept 1977] [implied bailment]; Leavy v Games Mgt. Serv., 105 Misc 2d 50, 51 [NY Civ Ct 1980] [delivery to agent]). Bedford had control over its post office box and all stages of delivery thereafter.
Based upon the documentary evidence submitted, together with claimant's credible trial testimony, the court finds and concludes that claimant has established, by a preponderance of the credible evidence, that items of her property under the care and control of defendant were not delivered to her. Defendant submitted no evidence to rebut the presumption of negligent bailment and demonstrate that the loss was due to circumstances not within its control.
"With respect to value, claimant must satisfy the court of the fair market value of the items in question . . . receipts are the best evidence of fair market value [less depreciation], although uncontradicted testimony concerning replacement value may also be acceptable" (Kilpatrick v State of New York, UID No. 2008-030-001 [Ct Cl, Scuccimarra, J., Jan. 22, 2008]; see also Phillips v Catania, 155 AD2d 866 [4th Dept 1989]; Alston v State of New York, 9 Misc 3d 1126[A] [Ct Cl 2005]). Claimant submitted a receipt from Liyahs Goods listing the items that were shipped and their prices (Exh. 1). Claimant also listed the values of the items in her grievance and her claim (Exhs. 2 and 3). The court finds the missing items and their value to be as follows:
Cracker barrel cheese (3 @ $5.00) $15.00
Evaporated milk (4 @ $3.50) $14.00
Sweet condensed milk (3 @ $3.50) $10.50
Hormel chili (2 @ $3.00) $ 6.00
Hormel ham (1 @ $8.00) $ 8.00
Sylvia's collard greens (2 @ $3.00) $ 6.00
Goya beans (4 @ $3.00) $12.00
Green Giant corn (3 @ $2.00) $ 6.00
Green Giant string beans (3 @ $2.00) $ 6.00
Green Giant baby carrots (1 @ $2.00) $ 2.00
Green Giant long carrots (1 @ $2.00) $ 2.00
Crushed pineapple (2 @ $2.00) $ 4.00
Kale (1 @ $4.00) $ 4.00
Chocolate chips (1 @ $2.50) $ 2.50
Claimant is not entitled to recover the cost of shipping and handling or for the cost of copying documents in this claim for property loss. The cost of shipping or mailing is not an element of value of the property subsequently lost, which is what the bailor is entitled to recover as damages (see Vetland v FX Enters. I, Ltd., 49 AD3d 632, 634 [2d Dept 2008] [proper measure of damages for bailor's lost property is reasonable value of the lost property]).
Accordingly, the court finds that claimant is entitled to judgment in the sum of $98.00, inclusive of interest. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2). Defendant's motion to dismiss is denied. The Chief Clerk is directed to enter judgment accordingly.
September 24, 2018
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
1. Presumably the package that is the basis of this claim.
2. As of January 11, 2017, when claimant submitted her property claim at the facility, she had not received a hearing on her grievance.
3. Claimant also asked that documents attached to the claim as exhibits (nos. 5-7, 18 and 21-24) be admitted as trial exhibits. Defendant did not object, subject to redaction for hearsay. The documents concern claimant's dispute with the FOIL officer over his alleged denial of her request for access. However, the remedy for FOIL denials is not within the jurisdiction of this court.