Opinion
Claim No. 136323-A
03-02-2023
Bernardo Martinaj, Claimant, v. State of New York, Defendant.
For Claimant: Bernardo Martinaj, Pro se For Defendant: Hon. Letitia James, Attorney General of the State of New York By: Douglas R. Kemp, Esq. Assistant Attorney General
Unpublished Opinion
For Claimant:
Bernardo Martinaj, Pro se
For Defendant:
Hon. Letitia James, Attorney General of the State of New York
By: Douglas R. Kemp, Esq. Assistant Attorney General
Javier E. Vargas, J.
This Court having presided over the instant trial on February 7, 2023, heard the testifying witnesses, examined the pleadings and exhibits in evidence, and listened to the arguments raised during trial, hereby makes the following findings of fact and conclusions of law.
I.
On May 3, 2021, Claimant, Bernardo Martinaj (hereinafter "Claimant"), an incarcerated person at Shawangunk Correctional Facility (hereinafter "Shawangunk"), filed the instant bailment Claim alleging that Defendant, State of New York (hereinafter "State"), lost several items of his personal property during a transfer from Shawangunk to Sing Sing Correctional Facility (hereinafter "Sing Sing"). Specifically, Claimant alleges that, on April 21, 2020, he was placed in isolation at the Shawangunk infirmary after he contracted Covid-19, whereupon Correction Officers Plummer and Harrington collected and boxed the personal property located in his cell in order to transfer him to Sing Sing to continue his quarantine. In support of his Claim, Claimant attached a "Personal Property Transferred," Form 2064, dated April 21, 2020, listing all of his personal property at the time of the transfer. Thereafter, on May 5, 2020, Claimant was released from isolation at Sing Sing, and Correction Officer H. Calo processed the return of his possessions to him, making a notation on the side of the Form indicating that Claimant was "missing 23 packs of cigarettes, 2 pairs of shoes + 2 [pairs] sne[a]kers" (Defendant's Exh. A).
However, Claimant alleges in his Claim that, upon further inspection, he discovered that there were numerous other items that were missing and never packed, including: legal documents ($7,000); 200 pictures ($1,000); dentures ($224); 30 pouches of TOP tobacco ($98.40); five Albanian Law Books ($100.00); two Hebrew books ($67.50); six Chinese books ($70.00); a Spanish dictionary ($15.00); Arabic dictionary ($31); Habeas Corpus Checklist ($275.00); Gilbert's Law Book ($122.50); Prisoner Litigation Manual ($175); hot pot ($16.66); commissary purchased food ($127); and 26 lbs of visitor package food ($200), totaling over $9,522.06. Within five days of learning that the facility could not locate his additional lost property, Claimant filed an Inmate Claim Form as per the directives of the State Department of Corrections and Community Supervision (hereinafter "DOCCS") as well as a Grievance in an attempt to locate the rest of his missing items.
The State filed a Verified Answer on June 14, 2021, denying a majority of the allegations and interposing six affirmative defenses. On June 30, 2022, following the retirement of the Hon. Faviola A. Soto, who was presiding over this case, all matters and motions currently pending before her were transferred to the undersigned. Upon realizing that this matter has been pending since May 2021, the Undersigned scheduled a virtual trial for February 7, 2023 to be held using the Microsoft Teams application via video from Shawangunk.
II.
At the trial held on February 7, 2023, Claimant appeared via video from Shawangunk and the State appeared by video link from upstate New York. Claimant's Exhibits 1 through 20 were admitted into evidence on consent. A certified copy of Claimant's Grievance Packet and the State's Verified Answer were entered into evidence on consent as the State's Exhibits A & B. Faced with a self-represented Claimant, the Court carefully explained the rules and procedures to be followed during the unified trial to establish both liability and damages. Both parties waived opening statements on their respective cases.
The first witness to testify was Claimant, who testified that in the beginning of 2020, he contracted Covid-19 and was placed in the infirmary at Shawangunk, then a week later he was transported with his personal property to Sing Sing to quarantine. While at Sing Sing, he compared the Inmate Property Transferred Form which was prepared by the officers at Shawangunk, with the property that he received (see Claimant's Ex. 4), and discovered that he was missing several items which were noted by the officer who unpacked his property. Claimant testified that the officer handwrote the missing items on the right hand side of the Form (id.). Claimant testified that he later discovered through another inmate - one Mr. Smith - who cleaned the cell after the officers packed his items at Shawangunk, that the officers only packed everything that could fit in four bags - but that he was required to throw out two garbage bags full of commercially packed food, shoes, books and other stuff (see Claimant's Exh. 11). Claimant then referred the Court to Claimant's Ex. 6, which was a similar Form 2064 dated December 5, 2019, listing the property that Claimant possessed when he was transferred from Auburn Correctional Facility to Shawangunk. Claimant presented this evidence to show that he did have and owned the items that he referred to in his Grievance.
Claimant testified to every missing item enumerated in his grievance, including 23 packs of Newport cigarettes valued at $235.98; two pairs of shoes valued at $70; five pairs of sneakers valued at $60; Under Armour boots valued at $60; a pair of Nike boots valued at $60; more than 200 pictures at $2 each; dentures costing $224 (Claimant's Ex. 7) ; 30 pouches of tobacco valued at $98.40 (see Claimant's Ex. 6); two religious Hebrew Books valued at $67.50; five Albanian Law Books valued at $100.00; Spanish dictionary valued at $15; six Chinese books in Mandarin valued at $70; Arabic Dictionary valued at $31; Habeas Corpus Checklist valued at $275; a Gilbert's Law Book valued at $122.50 ; a Prisoner Litigation Manual valued at $175 ; a hot pot valued at $16.66; purchased food valued at $127 (Claimant's Ex. 8); food received from visitors (Claimant's Ex. 9); and international legal documents valued at $7,000. With respect to the international legal documents, Claimant stated that "he was kidnaped by the U.S. government and was taken against his will from Albania." He explained that the reason for his incarceration was that he was a bouncer at a club in 1997, when "six drunks attacked him and one of them died... He panicked and fled to Albania in January 2000" to September 2001, when he faced Criminal Court proceedings, was found guilty of murder and sentenced to 40 years to life.
Claimant testified that the disbursement form is an authorization of disbursement of funds from Claimant's account and is proof that he paid for the dentures.
At trial, Claimant testified that he does not have receipts for all these books because the receipts were lost or unpacked, allegedly due to the negligence of the packing officer.
Per Claimant, none of these books were provided by the facility law library.
Claimant testified that these were items purchased in the commissary but never packed.
No value provided by Claimant.
Claimant testified that those Albanian documents were prepared by his lawyers in 2003 for pending litigation with respect to his extradition from Albania to America on September 9, 2001. Cost to reproduce those documents was calculated to be $7,000. It seems that he kept those documents for 17 years in his prison cell.
Unless otherwise indicated, matters in quotations are to the Court's own trial notes
On May 7, 2020, Claimant filed an Inmate Grievance Complaint with the Sing Sing Grievance Program, and upon investigation, Sing Sing determined, in accordance with the prior notations, that 23 packs of Newport cigarettes, two pairs of boots and two pairs of sneakers were missing. As a result, Sing Sing Inmate Claims officer Taylor made a settlement offer in Claimant's favor of $235.00 on June 29, 2020 (State's Exh. A, at 24). However, Claimant refused the offer on July 2, 2020, and appealed to Sing Sing, which denied Claimant's claim on August 16, 2020. He then appealed to the Central Office of Inmate Accounts, and on February 11, 2021, Caroline Cipollino, DOCCS Associate Budgeting Analyst with the Office of Inmate Accounts, approved his reimbursement to the extent of $250.00 "for cigarettes and 1 pair of boots" (State's Exh. A, at 19). Again, Claimant disagreed with the offer and filed the instant Claim on the grounds that DOCCS' investigation was partial and not in accordance with the guidelines outlined in DOCCS Directive 2733.
Upon cross examination, Claimant testified to the existence of a Form 2064 prepared upon his arrival from Auburn in December 2019, about five months before his belongings were packed up on April 21, 2020. Also, he acknowledged that he did not attempt to obtain duplicate receipts for the various books and publications or attempt to show documentation of the value of other items. Claimant testified that he could not find the hot pot permit for the new hot pot that he purchased upon his arrival in Shawangunk, and further testified that he ate "some of the food" that he purchased on March 9, 2020 and April 9, 2020, prior to his illness almost a month later. Claimant confirmed that on the Form 2064, the Officer at Sing Sing noted the items missing from his property, and that the Claim Form that he submitted on May 5, 2020, listed those exact items consistent with the items that he listed on his Form (see Claimant's Exh. 4 & 10). He acknowledged receiving a document in response to his appeal, offering him $250 for his lost property, but that he declined that offer (see Claimant's Ex. 18). At the close of his cross examination, Claimant rested.
On behalf of the State, one witness was presented, DOCCS Correction Officer S. Plummer, who testified that he worked at Shawangunk for a little over 10 years, and for DOCCS for almost 19 years. On April 21, 2020, his job assignment was with the transportation detail where he would transport incarcerated persons and their property from one facility to another as necessary. Although packing up incarcerated persons' cells was not something that he did, he recalled packing up Claimant's cell on April 21, 2020. On that day, he was told that he had mandated overtime and the task "was to pack up Claimant and four other [incarcerated persons] to transport them from Shawangunk to Sing Sing" because they needed to make room for more incarcerated persons that were Covid -19 positive. He "assisted another officer" who physically placed all of the items into property bags, while Officer Plummer observed from outside of the cell and filled out the I-64 Form with the particular items. The other Officer told him the item that he was placing in the bag, and officer Plummer looked for the item and recorded it on the Form.
According to Officer Plummer: "There were some library books from [the Facility's] library in the cell and he couldn't take those books to the other facility." He testified that the contents of two plastic bins located under Claimant's bed including legal type "paper work, folders and magazines" were inventoried and placed in the bags. "There were some items of food which were old or expired" and bowls that were left out on Claimant's desk that were beginning to spoil and grow mold since he was not in his cell for some time.
After the bags were packed, Officer Plummer testified that they "were secured and sealed with the numbers recorded on the I-64" Form (see State's Ex. A at 14). Then the bags were transported to a loading dock for pick up and placement in the transportation van. "There were two vans transporting five incarcerated persons with five sealed bags each...[guarded] by two officers in each van." According to the officer, the bags "were never left unattended," and the seals were "cut open in the presence of the [incarcerated person]." He testified that other than the facility items and the garbage that was discarded, "all of Claimant's items were packed up and sent with him to Sing Sing." Once they arrived at Sing Sing, the incarcerated persons went into the facility first, then the bags were loaded onto a cart and rolled into the facility. The bags were handled by officers only, and after the bags were dropped off, Officer Plummer left the facility. Thereafter, the Officer testified about a Memo dated June 4, 2020, that he wrote to Sergeant Brown regarding Claimant's property (see State's Ex. A at 12). He filled out the Form 2064 and affirmed that all the property listed thereon were packed in four bags (see State's Ex. A at 14). He testified that a total of 25 books were packed, and they were not itemized, as well as 30 packs of Newport cigarettes. Per the memo, he did not recall seeing any tobacco pouches in Claimant's cell.
Upon cross examination by Claimant, Officer Plummer recalled seeing "a lot" of "legal papers and documents" which were placed in one bag, and that "three legal papers envelopes" were listed on the I-64 Form. Because everything happened pretty quickly, he testified that he was not proficient with the Form, and did not find time to itemize the books. He could not recall a hot pot in Claimant's cell nor did he list it on the I-64 form. Officer Plummer could not recall seeing any photographs, did not know how many boots or sneakers were packed, and did not recall seeing any dentures. He could not recall any food items other than the open food items in Claimant's cell. According to the Officer, if he did not write it down, it was not in Claimant's property. No redirect testimony was taken of the Officer.
After the testimony of Officer Plummer, the State rested and waived summations. Claimant elected to provide an oral summation arguing that there was no culpable conduct on his part in losing his property and he presented enough evidence to support his Claim, and requested a judgment in his favor to compensate him for the property lost from his cell which had sentimental and legal value. The Court reserved decision.
III.
The State "as a bailee of an [incarcerated person's] personal property owes a common law duty to secure the property in its possession" (Cunningham v State of New York, 75 Misc.3d 1214 [A] [Ct Cl 2022] , citing Pollard v State of New York, 173 A.D.2d 906 [3rd Dept. 1991]; see Williams v State of New York, 61 Misc.3d 743, 744 [Ct Cl, 2018]). In order to establish a prima facie case of negligence in a bailment transaction, a claimant must demonstrate the delivery of personal property to the defendant and failure to return it in the same condition (see Christian v State of New York, 21 Misc.3d 1128 [A] [Ct Cl 2008]; Gagne v State of New York, 14 Misc.3d 1214 [A] [Ct Cl 2006]). If DOCCS fails without good explanation to deliver property to the incarcerated person in the same condition as when it was received, then there is a rebuttable presumption that DOCCS is negligently responsible for the loss (7 NYCRR 1700.7[b][1]). Once a prima facie case of bailment negligence is established, the burden shifts to the defendant to come forward with evidence to overcome the presumption with proof of explanation of the loss (see Cunningham v State, 75 Misc.3d 1214[A]; Christian v State, supra.).
Pursuant of Court of Claims Act § 10(9), "a claim of any inmate in the custody of the department of corrections and community supervision for recovery of damages for injury to or damages for loss of personal property may not be filed unless and until the incarcerated person has exhausted the personal property claims administrative remedy, established for [incarcerated persons] by the department" (see 7 NYCRR 1700.3; McCullough v State of New York, 5 Misc.3d 1030 [A] [Ct Cl, 2003]).
Applying these principles to the matter at bar, the Claimant established sufficient proof at trial for the partial approval of his claim. The record reflects that sometime in April 2020, Claimant contracted the Covid-19 virus and was removed from his housing cell to the infirmary at Shawangunk to recover under quarantine. On April 21, 2020, outside of Claimant's presence and while he was in the Shawangunk infirmary, Officers Plummer and Harrington were charged with the responsibility of packing the contents of Claimant's cell. Four bags were bagged and tagged for transfer to Sing Sing with Claimant. When his belongings were unpacked by the Officer at Sing Sing, some items were missing and noted, including 23 packs of cigarettes, 2 pairs of shoes and 2 pairs of sneakers. Claimant filed a Grievance and exhausted the last of his administrative remedies when on February 11, 2021, DOCCS Commissioner Anthony Annucci offered Claimant a settlement of $250 (see Claimant's Ex. 18).
This Court finds that Claimant credibly testified as to several of the missing items, including items listed on the Forms 2064, which were not present in the bags. The record establishes a prima facie case that DOCCS failed to ensure that all of Claimant's property was properly packed and bagged. Although understandable given the emergency and panic situation created by the Covid pandemic and infected individuals at the time, DOCCS Officers appear to have thrown away some of Claimant's personal property in their rush to transport him to Sing Sing for further quarantine. The Court further finds that Officer Plummer's testimony did not overcome - and sometimes supported - the presumption of the State's liability for the loss or destruction of Claimant's personal property.
With respect to damages, the Court finds Claimant's proof persuasive regarding some of those items listed on the Forms 2064, but not with respect to additional items listed on his Claim. In a bailment action, the claimant must establish the value of each item of property for which he seeks damages, less depreciation (see Miceli v State of New York, 179 Misc.2d 424, 428 [Ct Cl, 1998]; Richards v State of New York, UID No. 2016-029-011 [Ct Cl, Mignano, J., January 28, 2016]). "The measure of recovery for the loss of bailed property is fair market value," which is determined by taking the value of the original purchase price and applying a reasonable rate of depreciation (Kornegay v State of New York, UID No. 2016-041-501 [Ct Cl, Milano, J.,January 13, 2016]; see Stewartson v State of New York, UID No. 2013-009-104 [Ct Cl, Midey, J.,October 16, 2013]). Although receipts are the best evidence of fair market value, uncontradicted testimony concerning replacement value may be acceptable (see Kilpatrick v State of New York, UID No. 2008-030-001 [Ct Cl, Scuccimarra, J., January 22, 2008]). Without the benefit of receipts, the court may reduce the total reimbursement requested to reflect claimant's weaker showing on the issue of valuation, or apply a steeper depreciation rate (see Konergay, supra; Turner v State of New York, UID No. 2013-041-508 [Ct Cl, Milano, J., April 19, 2013]).
Here, Claimant credibly testified that his receipts were never packed and likely thrown away as garbage by the officers who packed up his cell. The record supports a negative inference against the State with respect to the receipts that Claimant testified were missing from his cell (see Cunningham, supra). As a result, the Court will deem ownership to Claimant with respect to some of those listed items. While Claimant credibly testified about the missing items, aside from those items supported by receipts, the record provides sparse evidence regarding the fair market value of his lost property and a discounted value of 50% seems reasonable (see Turner, supra). In review of the entire record, the State shall reimburse Claimant in the amount of $632.95 as follows: 23 packs of Newport cigarettes at 50% of $235.98 or $117.50; two pairs of sneakers at 50% of $70 or $35; two pairs of boots - Under Armour and Nike at 50% of $120 or $60; dentures at $224; 30 pouches of tobacco at 50% of $98.40 or $49.20; religious Hebrew Books at 50% of $67.50 or $33.75; Albanian Law Books at 50% of $100 or $50; and purchased nonperishable food at 50% of $127 or $63.50.
With respect to the value of the hot pot, unspecified visitors' food, five allegedly missing sneakers, photographs and legal documents from the Albanian attorneys, the Court finds no substantial basis to support his valuation or reimbursement for those items (see Turner v State of New York, UID No. 2013-041-508). Those Albanian legal documents allegedly involve a challenge to his extradition from Albania to America over twenty years ago (see People v Martinaj, 56 A.D.3d 349 [1st Dept. 2008], app denied 13 N.Y.3d 940 [2010]), and Claimant was not credible in testifying that he had not previously filed those legal claims in Federal Court or otherwise (see Spears v State of New York, UID No. 2011-044-009 [Ct Cl, Schaewe, J., 2011]). Nor did Claimant provide any sufficient evidence of being knowledgeable or fluent in Spanish, Mandarin or Arabic in order to possess books on those languages. As to possessing a Prisoner Litigation Manual, Habeas Corpus Checklist and Gilbert's Law Book, those items appear to this Court to belong to the Law Library of the Facility, as Officer Fuller testified; they do not belong to Claimant.
In accordance with the foregoing, Claimant is awarded a judgment in the total sum of $632.95 and as for damages against the State, along with statutory interest from February 7, 2023, 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.