Claimant proved his negligent bailment of his photographs at trial, but was awarded no damages because family photos do not have a fair market value.
|Claimant short name:||CASTILLO|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||PEDRO CASTILLO, Pro se|
|Defendant's attorney:||BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 11, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for personal photographs that were allegedly lost by staff in the package room at Green Haven Correctional Facility (CF) in July 2012. The trial of this claim was conducted by videoconference on August 23, 2018, with the parties appearing at Green Haven CF in Stormville, New York and the Court sitting in Saratoga Springs, New York. Claimant, whose native language is Spanish, presented his testimony through a duly sworn interpreter. Defendant called no witnesses. Five exhibits offered by claimant were received in evidence; one exhibit offered by defendant was received in evidence. After listening to claimant testify and observing his demeanor as he did so, and upon consideration of that evidence and the documentary evidence received at trial and the applicable law, the Court concludes that while claimant has proven defendant's negligence, he is not entitled to compensation for the personal photographs.
Claimant testified that on July 20, 2012, the package room at Green Haven CF received a package for him from his sister that contained eight photographs of his father, which were thereafter sent to Sergeant Kelly to view. The Court received into evidence a receipt from Green Haven CF that indicates that eight "questionable photos" were received on July 20, 2012 and were "forwarded for review" (Claimant's Exhibit 1). Claimant testified that after a period of time he wrote to Sgt. Kelly asking about the status of the eight photographs, who wrote back to him telling him that the photographs were not in her log book. A memorandum from claimant to Sgt. Kelly dated September 11, 2012, inquiring about the status of the photographs, contained the following note at the bottom:
"I have no entry of receiving photos for you in my log book.
(Claimant's Exhibit 2). Claimant testified that he subsequently spoke to Sgt. Kelly in the visiting room and she told him she did not have the photographs on her desk. A memorandum from claimant to Green Haven CF mail room personnel dated September 18, 2012 that sought resolution as to the missing photographs, contains the following notation at the bottom and on the back of the memorandum:
"9/21/12 - If you received a receipt of questionable photos - they went to the package room for review[.] Check back with them - we don't have any photos here -
(Claimant's Exhibit 3). Claimant testified that he did not pay for the missing photographs and could not provide a monetary value for the photographs, but that they were of extreme personal value to him.
Claimant testified that he filed a grievance regarding the loss of the photographs and submitted an administrative claim to be compensated for the lost photographs. Claimant's grievance was denied by Green Haven CF Superintendent William A. Lee on October 16, 2012, who noted that the investigation into the alleged loss revealed that the eight photographs were received in the mail room on July 20, 2012 and sent to claimant on July 26, 2012, and that inmate property claims are processed in accordance with Department of Corrections and Community Supervision Directive 2733, which provides that items such as personal photographs have sentimental value and that it is not possible to attribute monetary value to them (see Claimant's Exhibit 6). Claimant's administrative appeal dated October 18, 2012, states that "This info is completely false; I have letters from mailroom & Sgt. Kelly stating pictures cannot be found" (id.). On October 12, 2012 claimant filed an administrative claim seeking compensation for the lost photographs, which was disapproved by CO D. Smith on October 25, 2012 on the ground that the photographs had only "sentimental value" (Claimant's Exhibit 5; see also Defendant's Exhibit A [Directive 2733], at p.5). Claimant appealed Smith's disapproval on October 27, 2012, which was disapproved by Lee on November 30, 2012 on the ground that there was "No proof/evidence that facility is responsible for loss" (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, a 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]). Establishment of 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]).
At trial, claimant credibly testified that Green Haven CF officials received personal photographs that were intended for him and that the photographs were subsequently lost and not delivered to him, which is supported by the responses by Sgt. Kelly and T. Fisher to claimant's memoranda, and he has thus made out a prima facie case of negligent bailment with regard to the photographs. The Court affords no weight to the findings of the grievance investigation that the photographs were delivered to claimant on July 26, 2012 as those findings were contradicted by claimant's credible testimony and the notations by defendant's agents on claimant's memoranda, along with the inconsistency created by Smith's determination to deny claimant's administrative claim on the ground that the photographs had only sentimental value and not because defendant had not lost the photographs. Thus, claimant's prima facie case of negligent bailment has not been rebutted by defendant.
The measure of liability for negligently bailed property is its fair market value, which is measured by the purchase price of the lost item(s) minus reasonable depreciation (see Phillips v Catania, 155 AD2d 866 [4th Dept 1989]). Although, the eight family photographs undoubtedly have sentimental value to claimant, they have no fair market value upon which an award can be made (see Encarnacion v State of New York, UID No. 2012-049-111 [Ct Cl, Weinstein, J., Sept. 27, 2012]; Kidd v State of New York, UID No. 2004-030-044 [Ct Cl, Scuccimarra, J., Nov. 22, 2004]). Thus, while claimant has proven that Green Haven CF officials were responsible for the loss of his photographs, no award of damages can be made.
Although claimant has proven by a preponderance of the credible evidence that defendant's agents were negligent, no monetary award will be made for the loss of claimant's photographs. Accordingly, claim number 122363 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.
The Chief Clerk is directed to enter judgment accordingly.
September 11, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims