Claimant, a pro se inmate, was awarded damages for the loss of personal property which was entrusted to prison staff but not returned.
|Claimant(s):||LAUREN A. SMITH, Inmate #04-B-1129|
|Claimant short name:||SMITH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Lauren A. Smith, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Christina Calabrese, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 21, 2020|
|See also (multicaptioned case)|
Claimant, a pro se inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for the loss of certain personal property allegedly entrusted to prison staff but not returned. In an amended claim filed and served without leave of court, claimant also sought damages for assault and battery by correction staff and wrongful confinement. By Decision and Order dated December 11, 2018, this court granted defendant's cross motion to the extent it sought dismissal of the amended claim. While defendant also sought dismissal of the initial claim, arguing that it failed to meet the pleading requirements of Court of Claims Act § 11 (b), the court held that although the initial claim failed to adequately plead a cause of action for either assault and battery or wrongful confinement, it clearly met the pleading requirements necessary to state a cause of action for the loss of claimant's personal property. Trial of this matter was conducted by video conference on November 22, 2019.
Claimant testified that he and Correction Officer Guyette were involved in a physical confrontation at Great Meadow Correctional Facility on July 6, 2015. Claimant was seen at the facility infirmary and assigned to the Special Housing Unit (SHU). After he was taken to the SHU officers went to his cell and packed his property. On July 10, 2015 he was taken to view his property, at which time he discovered several items were missing. In addition, claimant testified that the clothes he was wearing when he was admitted to the SHU also went missing and were never returned to him.
The Court finds that claimant established the existence of an implied bailment (see Foulke v New York Consol. R.R. Co., 228 NY 269 ; Wikiert v City of New York, 128 AD3d 128 [2d Dept 2015], lv denied 26 NY3d 902 ; Mack v Davidson, 55 AD2d 1027 [4th Dept 1977]; Gagne v State of New York, 14 Misc 3d 1214 [A] [Ct Cl, 2006]; Alston v State of New York, 9 Misc 3d 1126 [A] [Ct Cl, 2005]; Matter of Terranova v State of New York, 111 Misc 2d 1089 [Ct Cl, 1982]). As noted by the Court of Appeals in Foulke, a bailment does not "depend upon a contractual relation. It is the element of lawful possession, however created, and duty to account for the thing as the property of another that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not" (228 NY at 275). Here, claimant demonstrated that he relinquished exclusive possession and control of the property in his cell to Correction Officers who packed his property for safekeeping until his release from the SHU. Claimant also established, through both his testimony and various documentary proof, that he owned and possessed most of the property for which he makes a claim,(1) and that defendant failed to return certain items of his personal property (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]). An implied bailment being established, there is a rebuttable presumption that defendant is negligently responsible for the loss (see 7 NYCRR 1700.7 [b]). To rebut this presumption, it was incumbent upon the defendant to demonstrate that "all department staff who had a duty to protect the inmate's property carried out their duties in an acceptable way" (7 NYCRR 1700.7 [b] ). Directive 2733, section V, requires an initial claims reviewer to thoroughly examine the inmate's assertions, question all persons who could reasonably have information pertinent to the determination, obtain signed and dated statements of all individuals questioned, and complete form 1422 entitled Claim Investigation Report. No evidence was adduced demonstrating that any of these procedures were followed here. Inasmuch as the initial claim decision was unsupported by an appropriate investigation, defendant failed to rebut the presumption of negligence which arose in this case (see Directive 2733 [II] [B]). As a result, the Court makes the following award:
|Clear Tech T.V.||$149.70||7 months||Excellent||5%||$142.22|
|Koss Headphones||$ 7.61||4 months||Excellent||0%||$ 7.61|
|Clear Fan||$ 11.01||4 weeks||Excellent||0%||$ 11.01|
|Pan. Trimmers||$ 21.95||5 years||Excellent||20%||$ 17.56|
|Watch||$ 19.95||8 years||Fair||50%||$ 9.98|
|Basketball Shorts||$ 16.75(2)||1 month||Excellent||0%||$ 16.75|
|Food Package||$150.00||1-1/2 months||Good||0%||$ 0.00|
|Commissary Food Purchase||$ 32.44||1 week||Good||0%||$ 32.44|
|Sneakers-Fila||$ 21.95||4-5 years||Fair||0%||$ 0.00|
|Baseball Cap||$ 3.95||1 month||Excellent||0%||$ 0.00|
|Nike Sneakers||$ 55.95||2-1/2 years||Good||50%||$ 27.98|
Claimant is awarded $265.75. No award is made for the loss of the baseball cap, Fila sneakers or food package as claimant failed to produce evidence of ownership for these items.
Based on the foregoing, claimant is awarded $265.75 with interest from July 10, 2015.
To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of claims Act § 11-a (2).Let judgment be entered accordingly.
January 21, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. There are two Marking Permits and a signed and acknowledged list of rules for the T.V. (Exhibit 12); there is a disbursement form and inmate account statement reflecting payment for the Koss headphones (Exhibits 8 and 12); a disbursement form and inmate account statement reflecting the purchase of the fan (Exhibits 9 and 12); there is a Marking Permit for the trimmers (Exhibit 11); a Proof of Ownership form and Marking Permit for the watch (Exhibits 10 and 11); a receipt for the basketball shorts (Exhibit 12), and there are account statements reflecting various food purchases from the commissary. There is no evidence of ownership or possession referable to the lost baseball cap, food package or Fila sneakers.
2. Although the claim seeks $16.95 for the basketball shorts, the receipt reflects a purchase cost of $16.75.