Nicholas Serrano, Claimant, v. The State of New York, Defendant. (2023)

Claimant Nicholas Serrano, an incarcerated individual in the custody of the Department of Corrections and Community Supervision (DOCCS), filed this bailment claim pursuant to Court of Claims Act (CCA) § 10 (9), alleging that 20 packs of claimant's cigarettes were lost and not returned to him while he was confined in a Special Housing Unit (SHU) in 2021.¹ Claimant moved to dismiss the affirmative defenses asserted in defendant's answer pursuant to CPLR 3211(b), and this Court exercised its discretion and converted the motion to one for summary judgment pursuant to CPLR 3211(c) (see Serrano v State of New York, UID No. 2023-062-004, Motion No. M-98226 [February 15, 2023] [Chaudhry, J.]). The motion was adjourned and both parties were provided notice and an opportunity to provide additional submissions in support of, or in opposition to, the converted motion. Claimant did not file further papers, but defendant responded to the converted motion. For the reasons stated below, the motion is granted and summary judgment is awarded to claimant.

The State has a common-law duty to secure the personal property of incarcerated persons when such property is in its possession and, as a bailee, may be held liable for a breach of that duty (see Pollard v State of New York, 173 AD2d 906 [3rd Dept 1991]; see also Foy v State of New York, 182 AD2d 670, 671 [2d Dept 1992]; Waul v State of New York, UID No. 2004-009-134 [Ct Cl Dec. 9, 2004] [Midey, Jr., J.], aff'd 27 AD3d 1114 [4th Dept 2006], lv denied 7 NY3d 705 [2006]; 7 NYCRR part 1700 [DOCCS facility regulations governing administrative personal property claims of incarcerated persons]). In order to establish a prima facie case of negligent bailment in the prison context, a claimant must demonstrate the delivery of the property to correctional facility staff, and that the property was not returned upon claimant's demand, or not returned in the same condition (see Waul, supra; see also Cunningham v State of New York, 75 Misc 3d 1214[A] [Ct Cl 2022] [Mejias-Glover, J.]; see generally Claflin v Meyer, 75 NY 260, 262 [1878]; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049 [3d Dept 1981]).

Such a failure to return property "raises the presumption of liability on the part of the bailee"—here, DOCCS—but the bailee may rebut the prima facie case by "coming forward with evidence to overcome the presumption" of negligence (Weinberg v D-M Rest. Corp., 60 AD2d 550, 550 [1st Dept 1977], citing Proctor & Gamble Distrib. Co. v Lawrence Am. Field Warehousing Corp., 16 NY2d 344, 359 [1965] and Dalton v Hamilton Hotel Operating Co., 242 NY 481, 488 [1926]; see Waul, supra; see also Cunningham, supra).² For example, DOCCS may "rebut the prima facie case if it shows either how the loss occurred and that this was in no way attributable to its negligence, or that the requisite care was exercised in all respects to the bailed goods" (Singer Co. v Stott & Davis Motor Express, 79 AD2d 227, 231 [4th Dept 1981], citing Claflin, 75 NY at 264; see also Waul, supra [citing Singer]).³

Claimant has established a prima facie case on the issue of liability by submitting proof that he delivered the property at issue to defendant, and defendant thereafter failed to return the property upon his demand. In support of the motion, claimant submitted an affidavit and several DOCCS records. Claimant's affidavit states that he was housed in the SHU at Washington Correctional Facility on August 23, 2021, and that on that date, he received 20 packs of Newport cigarettes. A DOCCS Non-Food Package Record confirms the receipt of those cigarettes on that date, and indicates that they were sent by a Cynthia Serrano and signed for by claimant. Claimant's affidavit explains that, because he was housed in the SHU, he was not permitted to possess the cigarettes, which remained in the custody of correctional facility staff. Unlike other personal items which were also received by claimant in August 2021 while he was in the SHU, claimant's affidavit further states that he did not send the cigarettes back to the sender or otherwise authorize their disposal. The same August 2021 Non-Food Package Record indicates that claimant received towels and boxer shorts a few days before the cigarettes on August 18, 2021, as well as Reebok sneakers a few days after the cigarettes on August 26, 2021. The record indicates that those items, however, were specifically disposed of by claimant. Two Authorization for Disposal of Personal Property forms (Form 2068), which claimant signed on August 23 and August 26, respectively, show that those other items—unlike the cigarettes—were shipped back to Cynthia Serrano. Claimant's affidavit avers that, when claimant was thereafter transferred to Clinton Correctional Facility on September 17, 2021,⁴ the packs of cigarettes were not among his other property that was packed for transfer, as confirmed by the I-64 Personal Property Transfer Form that claimant has submitted in support of the motion. Finally, claimant's affidavit establishes that the cigarettes were not returned to him upon his release from SHU on September 17, 2021, and his motion papers include a copy of his administrative lost property claim submitted to DOCCS on that same date.

In opposition, defendant here has submitted no evidence to rebut the presumption of negligence that arises by virtue of claimant's prima facie showing such that any question of fact exists to defeat summary judgment (see Ramirez v City of White Plains, 35 AD3d 698 [2d Dept 2006]; Weinberg, 60 AD2d at 550; see also I.C.C. Metals, 50 NY2d at 664; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Indeed, defendant acknowledges that, after reviewing the available records, it was unable "to locate documents necessary to establish that the property was returned to claimant" or "to determine any permissible basis or reason why claimant's property was not returned to him" (King Affirm. in Opp to Mot [filed April 12, 2023], ¶ 7).

Defendant's liability thus having been established as matter of law, in such cases, " 'the measure of damages is [the property's] reasonable market value' " on the date of its loss or destruction (Reed v Cornell Univ., 138 AD3d 816, 818 [2d Dept 2016], quoting Gass v Agate Ice Cream, Inc., 264 NY 141, 144 [1934]; see also Mullen v Sinclair Refining Co., 32 AD2d 1000, 1001 [3d Dept 1969]). Here, claimant has also met his initial burden on the issue of damages by establishing the fair market value of the lost cigarettes. In support of the motion, claimant submitted a receipt for their purchase in the amount of $250.00 (see Waul, supra [noting that "[r]eceipts are the best evidence of fair market value"], aff'd 27 AD3d 1114; Cunningham, supra [same]; see also Reed, 138 AD3d at 818 [describing "the proper measure of market value" as "the price at which [the goods] could be replaced with a product of similar quality and characteristics in the market that existed immediately before their loss"]). In opposition, defendant failed to submit any evidence to raise a triable issue of fact as to the cigarettes' fair market value (see generally Alvarez, 68 NY2d at 324).

Accordingly, claimant having demonstrated entitlement to summary judgment as a matter of law on the issue of whether defendant is liable to claimant for negligent bailment and the value of the personal property lost, it is hereby

ORDERED that claimant's converted motion for summary judgment is GRANTED on the issues of liability and damages, and claimant is awarded damages in the sum of $250.00, together with the appropriate statutory interest pursuant to CPLR 5001 and 5002, from the date of accrual, September 17, 2021; and it is further

ORDERED that, 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.

November 14, 2023

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

Papers Considered:

1. Claim, filed January 26, 2022;

2. Answer, filed February 24, 2022;

3. Notice of Motion and Serrano Affidavit in Support of Motion, with exhibits, filed March 30, 2022;

4. Affirmation in Opposition to Motion of Assistant Attorney General Glenn C. King, with exhibits, filed July 18, 2022;

5. Serrano v State of New York, UID No. 2023-062-004, Motion No. M-98226 [Ct Cl February 15, 2023] [Chaudhry, J.];

6. Affirmation in Opposition to Motion of Assistant Attorney General Glenn C. King, filed April 12, 2023.

FOOTNOTES

1.   There is no dispute that claimant exhausted his administrative remedies and timely served and filed the claim within 120 days, as required (see CCA § 10 [9]).

2.   DOCCS' regulations governing the administrative determination of prison property claims are themselves consistent with these well-established principles (see 7 NYCRR 1700.7 [b] [1] [providing that, if DOCCS fails without good explanation to deliver property that was last in its control to the incarcerated person in the same condition as when it was received, "there is a rebuttable presumption that [DOCCS] is negligently responsible for the loss"]).

3.   An explanation that the alleged loss or damage was not within a defendant bailee's control or occurred without fault on its part "must appear or be proved with reasonable certainty," and the bailee does not "impose any necessity of proof upon the owner merely by alleging" the excuse (Clafin, 75 NY at 263; see also I.C.C. Metals v Municipal Warehouse Co., 50 NY2d 657, 664 & n 3 [1980]).

4.   The claim appears erroneously to state that claimant was transferred on this date from Washington Correctional Facility to Franklin Correctional Facility, which is the facility where claimant was housed at the time he filed the claim. The Personal Property Transfer form, however, indicates that claimant was transferred from Washington to Clinton Correctional Facility, as he also states in his affidavit.

Zainab A. Chaudhry, J.