Opinion
# 2015-018-602 Claim No. 121036 Motion No. M-86073 Motion No. M-86064
02-17-2015
JAMES BLACKWELL v. STATE OF NEW YORK
JAMES BLACKWELL Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General
Synopsis
Both motions are denied. Claimant is entitled to $64.92, plus statutory interest from November 6, 2011.
Case information
| UID: | 2015-018-602 |
| Claimant(s): | JAMES BLACKWELL |
| Claimant short name: | BLACKWELL |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended by the Court sua sponte to reflect the State of New York as the only proper Defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121036 |
| Motion number(s): | M-86073, M-86064 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | JAMES BLACKWELL Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 17, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks damages for his lost and/or damaged property in the State's custody while Claimant was in the Special Housing Unit (SHU) at Gouverneur Correctional Facility (Gouverneur). A trial was held on January 14, 2015.
Prior to trial, Claimant brought two motions which will be addressed first:
MOTION NO. M-86073
Claimant brings this motion seeking an Order granting him a judicial subpoena duces tecum for the production of certain documents in the possession of the Department of Corrections and Community Supervision at the trial of this claim.
A subpoena duces tecum is a legal document used to compel the party upon whom it is served to produce certain documents or things which "are relevant and material to facts at issue in a pending judicial proceeding." (Matter of Terry D., 81 NY2d 1042, 1044 [1993], quoting Matter of Constantine v Leto, 157 AD2d 376, 378 [3d Dept 1990], affd for reasons stated 77 NY2d 975 [1991]). A subpoena duces tecum should not be used for the purpose of discovery (Matter of Terry D., 81 NY2d at 1044).
Here, the documents Claimant seeks by subpoena duces tecum should already be in his possession or could have been provided through discovery. Nonetheless, Defendant has provided as attachments to its opposing papers, copies of all the documents sought by Claimant. As a result, a subpoena duces tecum is unnecessary. Claimant's motion is DENIED.
MOTION NO. M-86064
In this motion, Claimant seeks an Order granting him permission to serve a proposed supplemental "complaint" to assert that on October 25, 2013, when Claimant was being conditionally released to the Franklin County Sheriff, draft process employees at the Bare Hill Correctional Facility confiscated his broken glasses which were evidence in this claim for damages, and then on May 8, 2014, transportation officers denied Claimant the right to have his legal documents. Defendant opposes the motion.
The motion was returnable on the day of trial, and the Court heard oral argument from both Claimant and Defendant.
Claimant's "Supplemental Complaint" attached to the notice of motion indicates that correctional facility employees tampered with the physical evidence related to Claimant's claim in violation of Penal Law section 215.40 (2) and their actions constitute "spoliation of evidence." Defendant responded to the motion, with the understanding that Claimant was seeking to limit his claim to solely the loss of his glasses since the supplemental claim does not assert any other losses. Claimant clarified, during the oral argument of the motion, that he is actually seeking to supplement his claim to add a negligence cause of action for Defendant's destruction of his glasses. The Court reserved decision, but allowed Claimant to provide all the proof on his claim and supplemental claim at trial. The Court now DENIES Claimant's motion.
CPLR 3025 (b) provides that a party may amend or supplement his pleading by setting forth additional or subsequent transactions or occurrences by leave of the court and "[l]eave shall be freely given upon such terms as may be just." (CPLR 3025 [b]). Permission to amend or supplement a pleading should be liberally authorized provided the amendment is not "palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit." (Gitlin v Chirinkin, 60 AD3d 901 [2d Dept 2009]).
Here, Claimant's proposed supplemental information is unnecessary, despite Claimant's argument to the contrary, because it does not change the Claimant's theory of loss or the amount of damages Claimant seeks. In the original claim, he has already sought the full replacement value of the eyeglasses due to the State's negligent care of his eyeglasses while in its possession. Moreover, Claimant was permitted to testify at trial to what happened to his eyeglasses and to argue that the State was wrong in confiscating his glasses and should be found liable for their cost.
Accordingly, Claimant's motion is DENIED.
TRIAL DECISION
Claimant testified that on October 7, 2011, he was being transferred to the SHU at Gouverneur. Correction officers packed his belongings as required (see 7 NYCRR § 301.6 [c]; § 302.2 [g]). A pair of his eyeglasses were "stuffed" into one bag and were broken. In the SHU an inmate is allowed only limited property (see 7 NYCRR section 302.2). All restricted property that is confiscated is securely stored in accordance with department directives. The officer in charge must inventory the property within five days and the inventory sheet is to be signed by both the officer and the inmate. The regulation directs that the inmate should be permitted to view the inventory in process (7 NYCRR § 302.2 [g] [2]).
Claimant was moved from SHU to the infirmary on October 9, 2011, and was unable to view the inventory. On October 22, 2011, he testified he was given a brief opportunity to view his confiscated property but did not have time to compare the property with the inventory list (I-64). Furthermore, the clothing he wore to the SHU on October 7, which was also confiscated, was never added to the sealed bags, nor was it included on the I-64 form. Claimant acknowledged that he signed the document but insisted he never received the items he wore to the SHU after his release.
His I-64 was admitted as Defendant's Exhibit A.
On November 6, 2011, he was released from the SHU. All of his property was returned except the clothes he was wearing on October 7, 2011, and a pair of eyeglasses in the bag were broken. He further contends that the State failed to follow its own rules and regulations by not resolving this matter at the institutional level. He asserts he tried through discovery to obtain the investigation form, list, and witnesses to prove his case.
Claimant listed the items never returned to him in his claim and has estimated the value:
1 pair of New Balance Sneakers $43.95
1 burgundy hooded sweatshirt 8.97
1 thermal top 6.00
1 thermal pant 6.00
Wire framed eyeglasses (broken) $368.00
Claimant testified that because his property was not new, he depreciated all of the items except the glasses.
The I-64 showed Defendant took possession of two pairs of eyeglasses, two thermal tops, two thermal bottoms, three sweatshirts and a pair of sneakers.
Exhibit A.
The State has a duty to secure an inmate's personal property (Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]; Christian v State of New York, 21 Misc 3d 1128 [A] [Ct Cl 2008]) . A bailment is created when personal property is delivered to another who then has the duty to return the property in the same condition when it is demanded (Claflin v Meyer, 75 NY 260, 262 [1878]).
To establish a prima facie case of negligence in a bailment transaction. Claimant must show that his property was deposited with the Defendant, and the Defendant failed to return it (Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977], modified on another point, 53 NY2d 499 [1981]). A presumption of negligence is established when Claimant shows property was delivered to Defendant and Defendant has refused or is unable to return it on demand (Weinberg, 60 AD2d at 550). The burden then shifts to Defendant who must come forward with proof explaining the loss (Matter of Terranova v State of New York, 111 Misc 2d 1089 [Ct Cl 1982]). The measure of recovery for the loss of the property is its fair market value, which can be established by evidence of the original purchase price less a reasonable rate of depreciation (Phillips v Catania, 155 AD2d 866 [4th Dept 1989]; Schaffner v Pierce, 75 Misc 2d 21, 24 [Nassau Dist Ct 1973]). Receipts are the best evidence of fair market value but uncontradicted testimony of replacement value may also be acceptable (Figueroa v State of New York, UID No. 2009-030-010 [Ct Cl, Scuccimarra, J., April 2, 2009]).
As the trier of fact, the Court is charged with resolving issues of credibility (LeGrand v State of New York, 195 AD2d 784 [3d Dept 1993], lv denied 82 NY2d 663 [1993]). After observing Claimant testify, and assessing his behavior and demeanor, the Court finds Claimant has established that the State took possession of the clothes Claimant wore into the SHU on October 7, 2011, (one pair of sneakers, one hooded sweatshirt, one thermal top and one thermal pant) and did not return these items to him upon his release. Although Claimant's eyeglasses may have been damaged, Defendant has established through Claimant's acknowledgment that he has been issued a new pair of eyeglasses appropriate for his changing prescription.
Accordingly, Claimant is entitled to $64.92 ($43.95 for the sneakers, $8.97 for the sweatshirt, and $6 each for the thermal top and pant), plus statutory interest from November 6, 2011. To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2). All motions not heretofore decided are hereby DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
February 17, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court considered the following documents in deciding the motions within this Decision: M-86073
1) Affidavit of James Blackwell, sworn to December 11, 2014, in support, with attachment.
2) Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney General, in opposition with exhibits attached thereto. M-86064
3) Notice of Motion to supplement claim of James Blackwell, dated December 11, 2014, with attachment thereto.
4) Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney General, in opposition with exhibits attached thereto.