|Claimant short name:||LOPEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||HECTOR LOPEZ, 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:||April 11, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for personal property that was allegedly lost in August 2011 at Green Haven Correctional Facility (CF).(1) The trial of this claim was conducted on November 30, 2017 at Green Haven CF in Stormville, New York. Claimant presented his own testimony; defendant presented the testimony of Department of Corrections and Community Supervision (DOCCS) Correction Officer (CO) Glenn Trombly and called claimant as a witness. Claimant offered nine exhibits that were received into evidence.(2) Defendant offered one exhibit that was received into evidence. 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 $701.06.
Claimant testified that he was incarcerated at Green Haven CF on August 18, 2011 when his cell was set on fire while claimant was out of his cell attending his program. Claimant testified that he was interrogated by Sergeant Kelly, Lieutenant LaPorto and two other COs, who demanded to know who set the fire, and claimant was thereafter placed in Involuntary Protective Custody (IPC). Claimant testified that while he was in IPC, the Draft Room Officer told him that he could not locate claimant's personal property and asked him if he knew its location, to which claimant replied that he did not know, that his cell had been set on fire and that he should check with the Company Officer. Claimant testified that he subsequently discovered that his cell was searched after the fire and his personal property was removed from his cell by COs and taken to the Green Haven CF courtroom, where it was searched for contraband and left in the room for several days while claimant was in IPC.
Claimant testified that the Draft Officer subsequently located his property, took it to the Draft Room where it was inventoried on a Personal Property Transferred (I-64) Form, and then brought his property to him in IPC. Claimant testified that he was not given the I-64 Form from when his property was inventoried in the Draft Room. Claimant testified that the Draft Officer told him that none of his "permit items"(3) - i.e. those items such as jewelry and electronics that he was authorized to possess by virtue of facility permits - were with his personal property. The I-64 Form that was completed for claimant's personal property notes that nine bags and four boxes of claimant's personal property were packed at "Reception," that claimant did not have an opportunity to check the boxes, and stated at the bottom that "[n]o permit items in property" (Claimant's Exhibit 3). Claimant testified that when the property was brought to him he did not want to accept it because the I-64 Form stated that no permit items were in his property, so he made a notation on top of the I-64 Form. While claimant did sign the I-64 Form acknowledging receipt of the property listed on the form, a handwritten notation at the top of the I-64 Form states "property picked up in court room already packed in B Block" (id.).
A Tier II hearing was conducted on the inmate misbehavior report charging claimant with one count of possessing unauthorized medication after eight pills were allegedly found in claimant's cell after the fire (see footnote 2 supra). Sgt. Kelly testified at the disciplinary hearing that the cell door was locked and secured when she arrived at claimant's cell after the fire, that she had no knowledge of any missing items of personal property, and that CO Wells had packed claimant's personal property from the cell. CO Wells testified at the hearing that while he did not remember some of the items he packed, he did recall seeing a typewriter, and that he packed claimant's property and brought it to the courtroom.
CO Glenn Trombly, who has worked as a Draft Officer and has investigated inmate lost property claims, testified at trial that property that has been involved in a fire or has been contaminated with bodily fluids is generally not inventoried at the cell location but is transferred to a secure location and then inventoried on an I-64 Form. CO Trombly further testified that based upon his experience, inmates who sign an I-64 Form acknowledging receipt of property agree that they have received all of their property, and that inmates who are missing property can refuse to sign the form or note on the form that they are missing property.
Claimant filed an administrative claim seeking recovery in the amount of $847.92 for the following missing items of personal property: (1) a radio; (2) a fan; (3) a hot pot; (4) a calculator; (5) one pair of Sony headphones; (6) a typewriter; (7) a gold chain and cross; (8) a Norelco trimmer; (9) two books; (10) 50 postage stamps; (11) 20 packs of cigarettes and 20 pouches of tobacco; (12) one pair of Timberland boots; and (13) 362 pages of legal work (see Claimant's Exhibit 10). The administrative claim was rejected and disapproved for multiple reasons, including that the evidence indicated that the facility was not at fault (see id.). Claimant's administrative appeal was disapproved "based on written reports by security staff that all property packed and stored in a secured location" (id.).
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 breaching 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]).
Claimant credibly testified at trial that prior to his transfer to IPC on August 18, 2011, he owned all of the personal property for which he seeks compensation, and the credible evidence establishes that those items were packed by CO Wells, brought to the courtroom and were not subsequently delivered to claimant, thereby establishing a prima facie case of negligent bailment. Claimant's signature on the I-64 Form and CO Trombly'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 possessed the property and it was not subsequently delivered to him. Indeed, CO Wells' testimony at the Tier II hearing that claimant possessed a typewriter supports claimant's testimony that he possessed the permitted personal property in the first instance, lending further credence to claimant's assertions that he possessed the lost items.
Claimant argues that he is entitled to damages in the full amount of the purchase price of the lost items, but the measure of liability for negligently bailed property is its fair market value, which is measured by purchase price minus reasonable depreciation (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 testimony about the amounts paid for the lost items of property and the approximate age and condition of the items at the time of their loss was generally credible, and defendant has not persuasively contradicted any of claimant's proof. Therefore, the Court finds that claimant has proven his claim for negligent bailment and damages by a preponderance of the credible evidence, and claimant's loss is valued as follows:
(1) One typewriter, purchase price of $150.00, approximately 3 and one-half years old in excellent condition;(4) the Court assigns a depreciation of 20% and values the loss at $120.00;
(2) One gold chain and cross, purchase price of $50.00, approximately 4 years old in excellent condition; the Court assigns a depreciation of 10% and values the loss at $45.00;
(3) One fan, purchase price of $16.79, approximately one and one-half years old in excellent condition; the Court assigns a depreciation of 15% and values the loss at $14.27;
(4) One radio, purchase price of $118.00, approximately three and one-half years old in excellent condition; the Court assigns a depreciation of 25% and values the loss at $88.50;
(5) One pair of Sony headphones, purchase price of $30.00, approximately six years old in excellent condition; the Court assigns a depreciation of 75% and values the loss at $7.50;
(6) One calculator, purchase price of $30.00, approximately four and one-half years old in excellent condition; the Court assigns a depreciation of 25% and values the loss at $22.50;
(7) One hot pot, purchase price of $12.00, approximately three and one-half years old in excellent condition; the Court assigns a depreciation of 25% and values the loss at $9.00;
(8) Two books, as follows:
(a) "The Investigator's Little Black Book 2," purchase price of $3.95, approximately eight months old at the time of loss, the Court assigns a depreciation of 5% and values the loss at $3.75;(5)
(b) "The Investigator's Little Black Book 3," purchase price of $18.00, approximately eight months old at the time of loss, the Court assigns a depreciation of 5% and values the loss at $17.10;
(9) Tobacco products, as follows:
(a) Twenty unopened packs of cigarettes, purchased for $8.66 per pack;(6) the Court assigns no depreciation and values the loss at $173.20;
(b) Twenty unopened tobacco pouches, purchased at $2.72 per pack; the Court assigns no depreciation and values the loss at $54.49;(7)
(10) Fifty postage stamps, purchase price of 44 cents each, or $22.00; the Court assigns no depreciation and values the loss at $22.00;(8)
(11) Timberland boots, purchase price of $50.00, recently purchased and in excellent condition; the Court assigns a depreciation of 5% and values the loss at $47.50;
(12) One Norelco trimmer, purchase price of $25.00, approximately five years old in excellent condition; the Court assigns a depreciation of 50% and values the loss at $12.50.
Claimant testified at trial that he lost 255 pages of legal work, for which he seeks compensation. As recognized by DOCCS regulations:
"Lost legal papers often have no value. If records in a criminal case are lost when there is no further right of appeal and no further use for them, then the records have no more than 'sentimental value,' that is no value. If the lost legal papers can still be used, for example, in a pending or future legal proceeding, then the loss may be compensated by either replacing the papers or paying the reasonable cost to reproduce them. If an inmate can obtain replacement copies for no cost, then the lost papers have no value."
(7 NYCRR § 1700.8 [a] ; see also Brown v State of New York, UID No. 2016-044-014 [Ct Cl, Schaewe, J., Dec. 6, 2016]; Terrence v State of New York, UID No. 2015-031-502 [Ct Cl, Minarik, J., Jan. 22, 2015]). Here, the Court credits claimant's testimony that he needed the missing legal work for pending legal matters, i.e. a federal habeas corpus petition and a Criminal Procedure Law Article 440 motion, and thus the missing papers had more than sentimental value. Although claimant seeks compensation in the amount of $2.50 per page, which is the cost of replacement court transcripts, as evidenced by Claimant's Exhibit 1, the Court declines to make such an award. None of the documents for which claimant seeks compensation are court transcripts, but rather were reports, statements, correspondence, and other litigation documents, and claimant has offered no competent or persuasive evidence of the cost of replacing the missing legal work in excess of fees that are customarily charged for the reproduction of documents. Thus, the court assigns claimant's lost legal work the value of the reasonable cost of reproduction (see 7 NYCRR § 1700.8 [a] ), which the Court assesses at $0.25 (twenty five cents) per page, entitling him to an award of $63.75.
To the extent that claimant seeks the costs of mailing his claim, such is not recoverable on this claim for lost property.
Defendant is liable to claimant for lost property in the amount of $701.06, with statutory interest from August 18, 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.
April 11, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. The claim alleges that claimant's property had been taken from his cell after a fire, and it contains allegations that defendant's agents were negligent in permitting claimant's cell to be set on fire and that defendant's agents negligently and intentionally kept claimant in Involuntary Protective Custody. At trial, claimant sought compensation only for lost personal property, abandoning any causes of action arising from defendant's alleged negligence.
2. At trial, claimant offered into evidence Exhibits 5 and 6, which are the audiotapes of a Tier II disciplinary hearing that was conducted on three dates between August 24 and August 31, 2011 on an inmate misbehavior report charging claimant with one count of possessing unauthorized medication after eight pills were allegedly found in claimant's cell after the fire in his cell. The Court reserved decision on admission into evidence of the tapes, pending a review of them by defendant's counsel or a representative of the Attorney General's Office. Exhibits 5 and 6 were made available to defense counsel who listened to the tapes on or about January 26, 2018. Defendant did not subsequently offer any objection to the receipt into evidence of the exhibits, as required by the Court's December 1, 2017 "So Ordered" correspondence, and Exhibits 5 and 6 were therefore received into evidence without objection.
3. Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.
4. Claimant testified that the typewriter was two years old when lost, but the Green Haven CF permit for the typewriter was dated March 28, 2008, demonstrating that it was no less than three years and four months in age when it was lost. The Court notes that it construes claimant's testimony that all of the items that he lost were in "excellent" condition to mean that they were in excellent condition for their age, not necessarily that they were brand new or in mint condition.
5. Claimant sought the cost of $7.94 for this book, which includes its purchase price and the cost of shipping and handling of this book (see Claimant's Exhibit 7), but shipping and handling costs are not compensable.
6. Claimant requested compensation in the amount of $9.26 per pack for these cigarettes, but his administrative claim sought $173.20 in compensation for the cigarettes (see Claimant's Exhibit 10), which computes to $8.66 per pack.
7. Although claimant sought compensation in the amount of $3.62 per pack for the lost tobacco pouches, his administrative claim sought $54.49 in compensation for the pouches (see Claimant's Exhibit 10), which computes to approximately $2.72 per pack.
8. Although claimant requested compensation in the amount of $0.49 per stamp, his administrative claim sought $22.00 in compensation for the stamps (see Claimant's Exhibit 10), which computes to $0.44 per stamp.