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Donovan CUNNINGHAM, Claimant, v. The STATE of New York,1 Defendant.
On January 16, 2018, Claimant filed a Claim with the Court alleging a cause of action for bailment and seeking damages resulting from the State's negligence in handling his property at the Auburn Correctional Facility. On January 29, 2018, the State interposed a Verified Answer.
The matter was duly scheduled and called for trial on the record on May 19, 2022 2 . Claimant testified on his own behalf and neither party called any other witnesses.
The Court took judicial notice of the pleadings (including the “Inmate Claim Form”, and a handwritten list of Claimant's alleged property missing) and the following documents were entered into evidence: Memorandum dated June 5, 2017 (Defendant's Exhibit “A”); and Memorandum dated October 17, 2017 (Defendant's Exhibit “B”). The Claimant did not submit any additional documentary evidence at trial. It is further undisputed that DOCCS approved the Claim in the amount of $86.02, and that Claimant's eyeglasses were replaced at no cost. In the Supplemental Statement portion of the form dated September 28, 2017, Claimant stated “this offer is not acceptable due to the amount of property [he] lost and the cost and price [he] paid on original purchase; [t]herefore [he] reject[ed] this offer and appeal[ed] the claim to the superintendent.”
Pursuant to Court of Claims Act § 10 (9), a “claim of any inmate in the custody of the department of corrections and community supervision [DOCCS] for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department.” Only after the exhaustion of such remedies may the inmate then file and serve a claim “within one hundred twenty (120) days after the date on which the inmate has exhausted such remedy” (Court of Claims Act § 10 ). Here, there is no dispute that Claimant did exhaust his remedies.
Relevant Testimony and Findings of Fact:
Claimant testified that on or about April 5, 2017, while housed at the Auburn Correctional Facility, he was ordered by Sergeant Vantassel [sic] to Auburn's Special Housing Unit (“SHU”). Claimant testified that when he was being transferred to SHU, the correction officer failed to complete an I-64 property form and failed to make an itemized list of Claimant's personal property. He testified that when he was being transferred back to his cell and received his property back, approximately two thirds of his property was missing.
Claimant listed on the Inmate Claim Form that the following items were missing from his possession due to the above referenced alleged incident: (1) 24 personal books; (2) 1 pair nautical shoes; (3) 1 pair of sneakers; (4) 8 personal shirts; (5) 1 lamp with light bulb; (6) 1 two-speed fan; (7) 1 pair of headphones; (8) $50.00 Commissary; (9) family pictures; and (10) 2 tan bedspreads/pillowcase.
Claimant testified that his legal bag that contained receipts for some of the above referenced personal property items was destroyed and/or misplaced and therefore, he cannot provide receipts to the Court. Claimant testified that he did have receipts for the following items, which were missing upon return from SHU to his cell: (1) personal books; (2) headphones; (3) lamp; and (4) fan. He further averred that the photographs he had in his possession hold deep sentimental value and were invaluable to him.
Law applicable to the facts:
The State “as a bailee of an inmate's personal property owes a common law duty to secure the property in its possession” (Llaca v State of New York, UID No. 2014-015-592 [Ct Cl, Collins, J., Dec. 19, 2014], citing Pollard v State of New York, 173 AD2d 906 [3d Dept 1991], 7 NYCRR part 1700; see DOCCS Directive No. 4913 [“each item of [an incarcerated individual's] personal property to be transferred shall be recorded on Form No.2064”] and DOCCS Directive No. 4934 [“provides guidelines for temporarily securing and storing personal property by a Correction Officer when an incarcerated individual is moved to a ․ special housing ․ on a short term basis”]; see also Alston v State of New York, 9 Misc 3d 1126[A] [Ct Cl 2005]).
Where an incarcerated person demonstrates that property deposited with defendant is not returned, a presumption arises that defendant lost the property as a result of its own negligence (id.; see Amaker v State of New York, UID No. 2006-032-511 [Ct Cl, Hard, J., Aug. 14, 2006]). These holdings are consistent with DOCCS directives governing inmate property claims: “[w]hen an inmate's property was last in the control of [DOCCS], and [DOCCS] fails without good explanation to deliver it to the inmate ․ in the same condition as when received by the department, then there is a rebuttable presumption that the department is negligently responsible for the loss” (7 NYCRR 1700.7 [b]  [DOCCS Directive No. 2733]). The same presumption applies “[w]hen an inmate's property is lost in the process of shipment from a [DOCCS] department facility by department staff” (id. at [b]  [i]).
Once a prima facie case of bailment negligence has been established, “defendant must come forward with proof explaining the loss” (Amaker, UID No. 2006-032-511, citing Matter of Terranova v State of New York, 111 Misc 2d 1089 [Ct Cl 1982]; see 7 NYCRR 1700.7 [b]).
The imposition of sanctions for the spoliation of evidence involves the exercise of broad judicial discretion (see Ortega v City of New York, 9 NY3d 69, 76 ). Severe sanctions such as striking a pleading or issuing an order of preclusion is reserved for the most egregious of situations, such as where it is demonstrated that the evidence is unavailable due to deliberate or contumacious conduct (see Denoyelles v Gallagher, 40 AD3d 1027 [2d Dept 2007]; O'Connor v Syracuse Univ., 66 AD3d 1187, 1191 [3d Dept 2009], lv dismissed 14 NY3d 766 ; Osterhoudt v Wal-Mart Stores, 273 AD2d 673, 674-675 [3d Dept 2000]), or where a claim or defense is fatally compromised because the unavailability of evidence leaves a party unable to prove its claim or defense (see Hotel 57 LLC v Harvard Maintenance, Inc., 29 AD3d 462 [1st Dept 2006]; Baglio v St. John's Queens Hosp., 303 AD2d 341, 342-343 [2d Dept 2003]; cf. Mylonas v Town of Brookhaven, 305 AD2d 561 [2d Dept 2003]; Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621, 621-622 [2d Dept 2001]). It matters not whether the spoliation was intentional or negligent; rather, the nature of the sanction should relate to the degree to which the moving party has been prejudiced by the loss of the evidence (see Denoyelles v Gallagher, 40 AD3d at 1027; Baglio v St. John's Queens Hosp., 303 AD2d at 342; Chiu Ping Chung v Caravan Coach Co., 285 AD2d at 621-622).
Here, with respect to Claimant's receipts in which he testified were in his legal bag for his above referenced personal property items, the Court finds that this was deemed spoliation and as a result, Claimant should not be prejudiced or barred from receiving compensation for those items that he would have been able to provide ownership, but rather the Court will make an negative inference against Defendant with respect to receipts which Claimant testified were missing from his property upon his return to his cell, and will deem ownership to have been proven with respect to those items as more specifically set forth hereinbelow.
The Court therefore finds that Claimant has established by a preponderance of credible evidence that the State failed to return his (1) personal books; (2) headphones; (3) lamp; and (4) fan. Claimant has proven ownership of the aforementioned property through his testimony that the receipts that he had were located in his legal bag that was destroyed and/or misplaced.
Against Claimant's assertions, the State's arguments at trial centered principally on the following: (1) Claimant offered no documentary evidence establishing ownership of the items; and (2) Claimant failed to demonstrate the fair market value of his property. However, the Defendant acknowledged that the State did offer Claimant the amount of $86.02 to settle his claim
Finally, reaching the issue of valuation, and for the following reasons, the Court rejects defense counsel's contention that claimant failed to demonstrate the value of any of his property.
In a bailment action, the claimant must establish the value of each item of property for which he seeks damages (see Richards v State of New York, UID No. 2016-029-011 [Ct Cl, Mignano, J., Jan 28, 2016]). Value, in turn, is determined by reference to an item's fair market value (see id., citing Kilpatrick v State of New York, UID No. 2008-030-001 [Ct Cl, Scuccimarra, J., Jan. 22, 2008]; see also (Matter of Terranova v State of New York, 111 Misc 2d 1089, 1097 [Ct Cl 1982] [“The general rule is that the measure of damages in a bailment of personal property is the difference in the fair market value thereof in its condition as delivered (to the bailee) versus its condition as returned.”]) And “[f]air market value is determined by taking the value of the original purchase price, and applying a reasonable rate of depreciation” (see Stewartson v State of New York, UID No. 2013-009-104 [Ct Cl, Midey, J., Oct. 16, 2013]).
Although receipts “are the best evidence of fair market value, uncontradicted testimony concerning replacement value may also be acceptable” (Kilpatrick, UID No. 2008-030-001; see also Moley v State of New York, UID No. 2014-044-011 [Ct Cl, Schaewe, J., Nov. 20, 2014] [“While claimant did not have purchase receipts for the missing items, his testimony regarding the value and depreciation was credible, and the value he assigned to them in his administrative appeal was more than reasonable, as was the depreciation he allocated”]).
In cases where the issue of value has been demonstrated without the benefit of receipts, courts generally impose a steeper depreciation rate (Turner v State of New York, UID No. 2013-041-508 [Ct Cl, Milano, J., April 19, 2013] [applying 50% depreciation rate in light of claimant's relatively nonspecific proffers concerning condition of items lost]) or else diminish the total requested reimbursement to reflect claimant's weaker showing on the issue of valuation (see Kornegay v State of New York, UID No. 2016-041-501 [Ct Cl, Milano, J., Jan. 13, 2016] [awarding $125.00 to a claimant whose property defendant negligently lost and who sought $491.71 in damages, the reduction of award necessitated by “substantial evidentiary shortcomings regarding both the original value of claimant's lost possessions and of the fair market value of such possessions at the time of their loss”]).
With respect to Claimant's request for his family photographs, while personal photographs may have sentimental value “the law does not recognize or make allowance for a purely sentimental value which the property may have” (West v State of New York, UID No. 2002-015-558 [Ct. Cl., Collins, J., August 12, 2022]). “Moreover, this Court has held that personal photographs have no fair market value upon which recovery in a bailment case may be based (see, Benton v State of New York, Ct Cl, July 8, 1999 [Claim No. 94337] Collins, J., unreported; see also Moore v State of New York, Ct Cl, March 21, 2002 [Claim No. 99830] Scuccimarra, J., unreported; cf., Phillips v Catania, 155 AD2d 866).” Based upon the above referenced, the Court cannot provide Claimant with compensation for the missing photographs.
Based upon the documentary evidence submitted by the Claimant as annexed to the Claim, together with claimant's credible trial testimony, as well as the negative inference taken against the Defendant, the Court finds and concludes that Claimant has established, by a preponderance of the credible evidence, that items of his property, as more specifically set forth herein below, under the care and control of Defendant were not delivered to him. Defendant submitted no competent evidence to rebut the presumption of negligent bailment and or to demonstrate that the loss was due to circumstances not within its control.
Accordingly, and in light of the foregoing, the Court accepts Claimant's reimbursement requested stated in his inmate property form, with some deviation to account for additional depreciation, where appropriate, and hereby awards damages to the Claimant finding that the following represents either the fair market value of Claimant's lost property or DOCCS’ limitation of value for the particular item:
Accordingly, claimant is awarded a total sum of $221.53 as and for damages, along with statutory interest from May 19, 2017 (the date Claimant discovered that his property was missing), at the statutory rate provided in CPLR 5001. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
LET JUDGMENT BE ENTERED ACCORDINGLY.
2. The proceedings were held via Microsoft Teams in their entirety.
Linda K. Mejias-Glover, J.
Response sent, thank you
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Docket No: Claim No. 130841
Decided: May 20, 2022
Court: Court of Claims of New York.
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