Claimant proved at trial that defendant is liable to him for lost property, which was valued after trial in the amount of $140.63.
|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ANTHONY RODRIGUEZ, 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 20, 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 by employees of defendant at Green Haven Correctional Facility (CF) between September and November 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 presented his testimony and offered nine exhibits that were received into evidence. Defendant did not put on a case. 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 defendant is liable to claimant in the amount of $140.63. FACTS
Claimant testified that on August 30, 2012 he was confined in the special housing unit (SHU) after the issuance of an inmate misbehavior report. Claimant testified that his property was placed in front of him and unpacked, that some of the property was thrown out and the remaining property was repacked into unsealed bags in front of him, and that the bags were sealed outside of his presence after he had been escorted away. Claimant testified that on September 7, 2012, he received a package that contained a set of bed sheets that he was not allowed to possess while in SHU, where he remained housed. Claimant testified that a correction officer (CO) told him that the sheets would be placed with his other property. Claimant testified that prior to his release from SHU on November 20, 2012, his property bags were brought to him while he was in handcuffs in SHU, and he asked to inspect his property but was told that he could not view the property and that he should inspect the bags in his new cell and could file a claim for any missing items. Claimant testified that when he got to his new cell he inspected the bags and discovered that the bags were missing 390 pages of trial and hearing transcripts, 200 personal photographs, an electric beard trimmer, and the set of sheets.
A Personal Property Transferred (I-64) Form that was received into evidence reflects that four bags of claimant's personal property was packed on August 30, 2012 and that they contained "all" of claimant's legal papers, 200 photographs and one "electric razor/trimmer" (Claimant's Exhibit 2). The I-64 Form does not contain claimant's signature or any other notation that claimant acknowledged receiving his property on November 20, 2012. The Court received into evidence a printout showing that claimant purchased a "high quality sheet set" on August 21, 2012 that was shipped to claimant at Green Haven CF on August 23, 2012 (see Claimant's Exhibit 3), and a UPS tracking document that shows that the package was delivered to Stormville, New York on August 28, 2012 (see Claimant's Exhibit 5). Claimant testified that although the sheet set was received by Green Haven CF on August 28, 2012, it was not processed right away and he was not notified that he had received the sheet set until September 7, 2012.
Claimant testified that he wrote to various officials at Green Haven CF regarding the missing items and was told that they could not be located, and that he thereafter filed administrative claims seeking compensation for the loss, which were denied. Claimant wrote two memoranda to the package room inquiring about the missing sheet set, on November 20, 2012 and November 27, 2012 (see Claimant's Exhibit 8). At the bottom of the November 27, 2012 memorandum to Sergeant Kelly, Package Room Supervisor, the following note appears:
"I do not know where your sheet set is. I would write to someone in SHU.
(id. [11/27/12 Memorandum]). Claimant's administrative claim for the 200 photographs, 390 pages of trial transcripts and electric beard trimmer was disapproved on November 29, 2012 on the ground that he received his property on November 20, 2012, and his subsequent appeal was disapproved on January 11, 2013 on the ground "[a]ll property was signed for on 11/20/12" and that there was "[n]othing to substantiate loss of claimed items" (Claimant's Exhibit 6). The initial review and the subsequent appeal of claimant's administrative claim for the sheet set were disapproved on the ground that there was no record or proof that it had been received at Green Haven CF (see Claimant's Exhibit 7).
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 a breach of that duty (see Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). To make 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 August 30, 2011, he owned the trial and hearing transcripts, the photographs and the electric beard trimmer for which he seeks compensation, and the credible evidence establishes that those items were packed on August 30, 2012 and were not subsequently delivered to claimant upon his release from SHU, thereby establishing a prima facie case of negligent bailment with regard to those items. The Court attributes no weight to the administrative determination that claimant signed for the property on November 20, 2012 as claimant's signature is not on the I-64 Form in evidence acknowledging receipt of these items and claimant's credible testimony demonstrates that he did not receive those items. Claimant credibly testified that Green Haven CF received the sheet set, that he was not allowed to possess that item in the SHU, that defendant's agents retained possession of the property and did not deliver it to claimant after his release from SHU, establishing a prima facie case of negligent bailment. The Court grants no weight to the administrative determination that there was no record or proof that the sheet set was not received as it is contradicted by claimant's credible testimony and the failure of Sgt. Kelly, the Package Room Supervisor, to note in response to claimant's November 27, 2012 memorandum that no package was received. Thus, defendant has not rebutted claimant's prima facie case of negligent bailment for any of the claimed items.
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, the proof of value of the sheet set was established by a receipt, and none of this proof has been persuasively contradicted by defendant. 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 beard trimmer, purchase price of $16.75, approximately six years old in fairly good condition; the Court assigns a depreciation of 50% and values the loss at $8.38;
(2) One twin bed sheet set, purchase price of $34.75, in brand new condition; the Court assigns no depreciation and values the loss at $34.75.
Claimant testified at trial that he lost 390 pages of trial and hearing transcripts, 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 transcripts for a pending legal matter, i.e. a motion under FRCP 60 (b) seeking relief from the denial of a habeas corpus petition, and thus the missing papers had more than sentimental value.(1) Claimant seeks compensation in the amount of $8.00 per page for the cost of copying along with the cost of court-imposed insurance, but he testified that he did not pay $8.00 for every single page of the transcripts because some of the pages were provided by a court. Claimant did not offer testimony or other proof establishing the number of pages for which he did or did not pay $8.00, and no other proof was offered regarding the value of the transcripts. Upon this evidence, it would be speculative to find a quantity of pages for which he should be compensated $8.00, and accordingly, the Court assigns claimant's lost transcripts 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 $97.50.
The 200 family photographs, which undoubtedly have sentimental value to claimant have no fair market value upon which an award can be made in a bailment claim (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, although claimant has proven that Green Haven CF officials were responsible for the loss of his photographs, no award may be made to compensate for their loss.
Defendant is liable to claimant for lost property in the amount of $140.63, with statutory interest from November 20, 2012.(2) 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.
September 20, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Although a copy of the transcripts were in existence at the time of the loss, claimant testified that the only remaining copy of the transcripts were destroyed in a fire and that he cannot now access copies of the transcripts.
2. No evidence of the exact date that the property that was lost was presented during the trial, so the Court deems the date of the loss to be the date that claimant discovered the loss on November 20, 2012.