Gagne v State of New York

[*1] Gagne v State of New York 2006 NY Slip Op 52530(U) [14 Misc 3d 1214(A)] Decided on December 19, 2006 Ct Cl Schaewe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 19, 2006
Ct Cl

Stephen Gagne, Claimant,

against

The State of New York, Defendant.



109626



For Claimant:

Stephen Gagne, pro se

For Defendant:

Hon. Eliot Spitzer, Attorney General

BY: Joseph F. Romani, Assistant Attorney General

Catherine C. Schaewe, J.

Claimant Stephen Gagne, an inmate appearing pro se, alleges that defendant State of New York ("defendant") negligently lost certain personal property belonging to him when he was transferred from Elmira Correctional Facility ("Elmira") to Southport Correctional Facility ("Southport") in December, 2003. A trial was held in this matter at Elmira on October 25, 2006.

Claimant alleges the loss and corresponding value of the following:

1 GE super-radio$ 43.84

50 postage stamps @ $0.37$ 18.50

1 Smith-Corona typewriter$160.00

1 poetic edda bible$ 55.00

3 legal books$304.50

2 typewriter wheels$ 22.00

4 packages of typewriter ribbons$ 36.00,

for a total loss of $639.84.

Claimant testified at trial that on December 4, 2003, while he was being held in keeplock at Elmira, a correction officer came to his cell with two inmate porters. The officer ordered claimant to place his personal property in the custody of the porters, in preparation for transfer to [*2]Southport. It is undisputed that the property was taken from claimant at the instruction of a correction officer, and then inventoried and packed outside of claimant's presence in violation of Department of Correctional Services ("DOCS") Regulation 4917. The I-64 form prepared at Elmira by the correction officer who inventoried and packed the items, which was presented at trial as a court exhibit, clearly indicates that claimant was "not present", and claimant did not sign the form. That I-64 form includes notations that claimant's property included two law books and four typewriter ribbons, as well as an 'etron' radio/tape player. The I-64 form does not list a third legal book, a bible, a typewriter, a GE super radio, typewriter print wheels, or stamps.

Claimant testified that when he arrived at Southport, two bags were open, and the items listed in his claim were missing. The I-64 form from Southport does indicate that two bags were open on arrival. The form lists no legal books, no bible, no stamps, no GE super radio, no typewriter, no typewriter print wheels, and no stamps among claimant's property. The form does list one typewriter ribbon and an 'etron' radio.

Claimant filed an institutional claim for his loss, which was denied on February 24, 2004. He promptly appealed that denial, and the appeal was not decided by the date of filing of this claim on July 19, 2004. Claimant wrote to the Southport institutional steward on July 4, 2004, inquiring about the status of his appeal, and advising that he was going to consider his administrative remedies exhausted because the appeal had been unresolved for 4½ months. He correctly noted that Directive 2733 states that appeals should be determined within 15 days (see 7 NYCRR 1700.4 [d]). He received no response to that letter, nor to two other letters dated August 7, 2004 inquiring about the status of the appeal. On or about September 22, 2004, claimant finally received an offer of $25.50 for three typewriter ribbons, which he rejected.

At trial, claimant provided the following proof of his ownership of the missing items:

claimant's purchase receipt for three law books, a commissary receipt for 50 stamps dated November 25, 2003, claimant's purchase receipt for a GE super radio, claimant's purchase receipt for a typewriter, a prison permit form for claimant's GE super radio, and a prison permit form for claimant's typewriter.

Claimant also submitted an original receipt for a certified mailing and an original return receipt as proof of timely filing of the claim.

At the close of claimant's case, defendant's counsel made three oral motions to dismiss claimant's case: one for failure to properly serve the Attorney General's Office by certified mail, return receipt requested, in compliance with Court of Claims Act § 11 (a), one for claimant's failure to exhaust his administrative remedies pursuant to Court of Claims Act § 10 (9), and one for claimant's failure to demonstrate his ownership and/or the value of the allegedly missing items. The Court's rulings on those motions are addressed below.

Defendant then called Correction Officer Ames, who was the officer present at the time claimant's personal property was received at Southport, as demonstrated by his signature on the I-64 form. Ames testified he did not specifically recall being present when claimant's bags were unpacked, and that he had no recollection of claimant's bags being opened. He did state, however, that he had no doubt that they were open, as the facility frequently received bags that were open. Ames also noted that a number of the items on the Southport I-64 were not listed on the Elmira I-64. Defendant rested its case at the end of Ames' brief testimony.

Motion to Dismiss for Failure to Serve the Attorney General[*3]

by Certified Mail, Return Receipt Requested

In support of this motion, defendant submitted claimant's certified claim and supplementary documentation as received by the Attorney General's Office, including the original envelope. The envelope is stamped "Return Receipt Requested", and has the remains of the certified mail sticker still attached. The envelope indicates that it was received by the Attorney General's office on July 19, 2004. The documentation attached to the claim contains a cover letter indicating that the claim was being sent certified mail, return receipt requested, and also contains an affidavit of service indicating the same. Further, the amount of postage on the envelope is the correct amount for a letter sent certified mail, return receipt requested.[FN1] It should also be noted that the affirmative defense of improper service was raised in defendant's answer.

The basis for defendant's motion is the lack of the portion of the return receipt which is supposed to remain on the envelope, and which indicates the number of the receipt, so that the envelope can be matched with the receipt itself. However, the certified mail receipt submitted by claimant contains that portion of the return receipt that was supposed to remain attached to the envelope. The number on that portion of the return receipt matches the number on the receipt itself. In comparing the receipts with the envelope, it appears that whoever prepared the envelope [FN2] simply did not place the return receipt sticker in the proper place so that it would remain on the envelope. Further, the certified mail receipt returned to claimant indicates that the Attorney General's Office received the envelope on July 19, 2004.

The filing and service requirements contained in Court of Claims Act §§10 and 11 are jurisdictional in nature, and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). Claimant has the burden of establishing proper service (Boudreau v Ivanov, 154 AD2d 638, 639). Mail service by any means other than certified mail, return receipt requested, is insufficient to acquire jurisdiction over the State, unless the State has failed to properly plead that jurisdictional defense or raise it by motion (see Court of Claims Act §11[c]; Philippe v State of New York, 248 AD2d 827).

In this case, claimant has satisfied the Court that the claim was properly served, based upon consideration of the proof set forth by claimant, including the following:

- the envelope was stamped "Return Receipt Requested";

- the amount of postage is appropriate for an envelope sent certified mail, return receipt requested;

- the cover letter indicates service by certified mail, return receipt requested;

- the affidavit of service indicates service by certified mail, return receipt requested;

- the provision of the return receipt and the certified mail receipt containing the number of the return receipt;

- the certified mail receipt which indicates the same date as the receipt of the envelope at the Attorney General's Office; and

- a careful examination of the envelope by the Court, which revealed that the return [*4]receipt sticker was improperly attached to the envelope.

Accordingly, defendant's motion to dismiss for improper service, upon which decision was reserved at the time of trial, is hereby denied.

Motion to Dismiss for Failure to Exhaust Administrative Remedies

Defendant's next motion to dismiss is based on claimant's filing and service of this claim prior to any resolution of his administrative appeal. As set forth above, claimant acknowledged that he filed his claim prior to any resolution of his administrative appeal, but points out that he sent a letter to the appropriate prison official 4½ months after taking his appeal. That letter indicated that claimant was going to consider his administrative remedies exhausted. Notably, claimant received no reply to this letter.

Although defendant's failure to comply with the time frame set out in DOCS directive 2733 and 7 NYCRR 1700.4 (d) does not automatically mean that an inmate may consider his administrative remedies exhausted (Paladino v State of New York, Ct Cl, Sept. 15, 2005, Schweitzer, J., Claim No. 110824, Motion No. 70372 [UID No. 2005-036-102]), there are some circumstances under which an inmate may claim that exhaustion has occurred due to defendant's failure to address his claim in a timely manner (see e.g. Shell v State of New York, Ct Cl, Mar. 4, 2003, Waldon, J., Claim No. 103998, Motion No. M-65424, Cross Motion No. CM-65936) [claimant deemed to have exhausted his remedies when DOCS delayed 28 months in ruling on administrative claim].

In this instance, the Court finds that claimant had exhausted his administrative remedies, due to the combination of the following factors: defendant's failure to address claimant's appeal within 4½ months, claimant's July 4, 2004 letter to defendant that claimant was going to consider his administrative remedies exhausted, and, in particular, defendant's failure to respond to that letter. Defendant's motion to dismiss for failure to exhaust administrative remedies, upon which decision was reserved at trial, is denied.

Applicable Law and Discussion

Ordinarily, a bailment is created when personal property is delivered into the hands of another, who is then expected to return it in the same condition on demand (Claflin v Meyer, 75 NY 260, 262). Defendant has an obligation to secure an inmate's personal property (Pollard v State of New York, 173 AD2d 906). Once a claimant meets the burden of proving that his property was deposited with the defendant and that the latter failed to return it, the burden shifts to the defendant to overcome the presumption of its negligence (Weinberg v D-M Rest. Corp., 60 AD2d 550).

Even when there is no formal transfer of property, however, a bailment is still implied when one comes into lawful possession of the property of another (Mack v Davidson, 55 AD2d 1027). The determination of whether the relationship is that of bailor and bailee turns on whether there is exclusive possession, control and dominion over the property (Alston v State of New York, Ct Cl, Aug. 19, 2005, Schweitzer, J., Claim No. 108146 [UID # 2005-036-500]). When claimant's property was removed from his possession, defendant had "exclusive possession, control and dominion" over that property, as shown by the packing officer's inventory of the items, the packing and transfer thereof, and the packing officer's written notation [*5]that claimant was not present during these steps.[FN3] Any omissions are therefore chargeable to defendant (see McKinley v State of New York, Ct Cl, Nov. 9, 2005, Scuccimarra, J., Claim No. 107293 [UID # 2005-030-036]).

The Court is satisfied that claimant has proved by a preponderance of the evidence that he owned the missing items of property prior to his transfer to Southport, through his purchase receipts and prison permit forms. Although defendant contended that claimant did not adequately prove the value and ownership of the items, the Court finds that claimant's testimony regarding those issues was both persuasive and uncontradicted. In fact, CO Ames' testimony that many of the items listed as received on the Southport I-64 form were not listed on the Elmira I-64 form merely confirms claimant's contention that the inventory taken at Elmira was inaccurate, to say the least.

The measure of recovery when bailed property is not produced upon demand is the fair market value of the property, that is, the value of the original purchase price less a reasonable rate of depreciation (Phillips v Catania, 155 AD2d 866 [1989]). Receipts are the best evidence of fair market value. In this instance, the only item over one year old was the Smith Corona typewriter, which was purchased six years prior to its loss, and which claimant alleged to be in good condition. Taking into account depreciation of that item, the Court finds the fair market value of the typewriter to be $100. The Court awards total damages to claimant in the amount of $579.84.

The final issue before the Court is the award of interest on the damages. Court of Claims Act § 19 (1) provides that "[i]f a claim which bears interest, is not filed until more than six months after the accrual of said claim, no interest shall be allowed between the expiration of six months from the time of such accrual and the time of the filing of such claim." This statute was originally enacted as part of a major rewriting of the Court of Claims Act in 1939. One court has stated that "[t]he obvious purpose of subdivision 1 of section 19 of the Court of Claims Act is to insure some degree of promptness in filing a claim and having the amount of 'just compensation' adjudicated" (La Porte v State of New York, 5 AD2d 362, 365-366 [1958], affd 6 NY2d 1 [1959], appeal dismissed sub nom. La Porte v New York, 361 US 116 [1959]).

In 1999, the Legislature imposed the provisions of Court of Claims Act § 10 (9), which require that an inmate comply with the additional requirement of exhausting the personal property claims administrative remedy established by DOCS, prior to filing a claim in the Court of Claims. When DOCS complies with its own Directive 2733, which states that the final appeal of such administrative remedy should be determined within 15 days (see supra, pp 3, 6), the result of the interaction between the two statutes is not particularly harsh. When, however, DOCS fails to act on an appeal - in this case for 4½ months - depriving a claimant of interest due to defendant's own tardiness is both inappropriate and unjust. [*6]

An analogy may be drawn to wrongful death cases. In such cases, Court of Claims Act

§ 19 (1) has been interpreted to mean that interest on wrongful death damages runs from the date of death until a date six months after the appointment of an administrator of the estate, and then from the date the claim was filed until the date of entry of the judgment (see Dowly v State of New York, 190 Misc 16 [1947]; Mitchell v State of New York, 24 Misc 2d 853 [1960], affd 14 AD2d 478 [1961]). This is presumably because "the existence of a qualified administrator is essential to the maintenance of the [wrongful death] action and . . . the statutory right to recover for wrongful death does not even arise until an administrator has been named" (Carrick v Central Gen. Hosp., 51 NY2d 242, 249 n 2 [1980]). This interpretation thus essentially commences the running of the six-month limitation on accrual of interest prior to filing a claim as of the date that the claim may legally be commenced, i.e., upon appointment of the administrator.

A similar interpretation is appropriate in this instance. The Court finds that because claimant's filing of his claim pursuant to Court of Claims Act § 10 (9) was unduly delayed due to defendant's inaction, the date of commencement of the six-month period within which interest may accrue prior to filing the claim was July 4, 2004. Said date, on which claimant announced to defendant that he was considering his administrative remedies to be exhausted, is thus the date upon which the claim could legally be commenced. Claimant filed this claim on July 19, 2004, well within the six-month time period.

Accordingly, interest on claimant's damages of $579.84 shall be calculated from December 8, 2003, without suspension.

Any and all motions on which the court may have previously reserved or which were not previously determined, are hereby denied.

Finally, to the extent that claimant has paid a filing fee, it may be recovered pursuant toCourt of Claims Act § 11-a (2).

Let judgment be entered accordingly.

Binghamton, New York

December 19, 2006

________________________________

Catherine C. Schaewe

Judge of the Court of Claims Footnotes

Footnote 1: $4.65.

Footnote 2: Claimant testified that inmates do not prepare the certified mail and return receipt stickers; rather those are prepared either by the prison facility or the post office.

Footnote 3: Claimant's testimony regarding this procedure of taking an inmate's property and then conducting an inventory and packing it out of the presence of the inmate is disturbing to the Court. Such a procedure - and claimant testified that the Elmira facility frequently handles property transfers in this manner - clearly violates DOCS Regulation 4917. Moreover, it is conducive to the frequent disappearance of inmates' personal property and thus to the rapid proliferation of lost property claims against the State of New York.