Opinion
# 2017-045-510 Claim No. 126540
09-29-2017
JOSEPH FORINO v. THE STATE OF NEW YORK
Joseph Forino, Pro Se Hon. Eric T. Schneiderman, Attorney General By: Heather Rubinstein, Assistant Attorney General
Synopsis
Pro se inmate bailment trial.
Case information
| UID: | 2017-045-510 |
| Claimant(s): | JOSEPH FORINO |
| Claimant short name: | FORINO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126540 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | Gina M. Lopez-Summa |
| Claimant's attorney: | Joseph Forino, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Heather Rubinstein, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 29, 2017 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Joseph Forino, a pro se inmate, filed a claim on August 3, 2015 which alleged that defendant, the State of New York, through its agents, negligently lost his property while he was incarcerated at Fishkill Correctional Facility.
A trial of this claim was held by video conference on August 3, 2017. At trial, claimant's claim with attached exhibits was moved into evidence as Claimant's Exhibit 1. Claimant testified that on April 5, 2015, his cell was subjected to a search by two correction officers. He stated that after the search his radio was missing and that everything else was destroyed. He asserted that certain items were dumped in the toilet and that one item was thrown out the window.
Claimant submitted an inmate claim form in which he sought reimbursement for a radio; sheets; photos; sweatshirt; paint brushes; tobacco; rice; flour; cream cheese; baby powder and lotion in the amount of $277.50. The claim was disapproved on May 4, 2015 with the explanation that a supervisor stated that a contraband receipt was issued to all inmates and there was no report of damages. Additionally the inmate did not provide any witnesses or supporting documents. Claimant appealed the decision on May 6, 2015. On May 21, 2015 the appeal was disapproved because no additional supporting information was supplied. In support of his claim, claimant provided documents which established that he owned the property and provided receipts for certain items of his property.
At trial, defendant submitted into evidence Exhibit A, which is a full copy of the inmate claim form, as well as Exhibit D, the contraband receipt which indicates that no contraband was found and that no property was damaged during the search. Correction Officer K. Harris testified on behalf of defendant that he was the correction officer who conducted the search. He credibly testified that he recalled performing this search and that he did not throw anything on the floor or out the window. He stated that he did not destroy or damage any of claimant's property. He did not testify with regard to the radio.
The State has a duty to secure an inmate's personal property (Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). A delivery of property to the bailee, and the latter's failure to return it, satisfies the Claimant's burden of establishing a prima facie case of negligence. The bailee is then required to come forward with evidence to "overcome the presumption," (Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]).
With respect to value, Claimant must satisfy the court of fair market value of the items in question (Phillips v Catania, 155 AD2d 866 [4th Dept 1989]). Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable (Kilpatrick v State of New York, UID No. 2008-030-001, [Ct Cl, Scuccimarra, J., Jan. 22, 2008]). Personally meaningful items, such as photographs, have no fair market value (Benton v State of New York, [Ct Cl, July 8, 1999, Collins, J. Claim No. 94337]).
Based upon the testimony and the documentary evidence submitted, the Court finds that with respect to the radio, claimant has demonstrated a prima facie case of bailment while defendant has failed to adequately overcome this presumption. As a result, claimant is awarded the amount of $75, inclusive of interest.
All other motions on which the Court may have reserved decision or which were not previously determined are hereby denied.
To the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
The Clerk of the Court is directed to enter judgment accordingly.
September 29, 2017
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims