Opinion
# 2020-058-011 Claim No. 128742
02-06-2020
JOSEPH VANDENBURG v. STATE OF NEW YORK
Joseph VanDenburg, Pro Se Hon. Letitia James, New York State Attorney General By: Thomas Trace, Esq., Associate Attorney
Synopsis
After trial, Claim alleging bailment dismissed; Claimant failed to present proof in admissible forms to satisfy his burden of establishing that the alleged lost property was delivered to DOCCS.
Case information
| UID: | 2020-058-011 |
| Claimant(s): | JOSEPH VANDENBURG |
| Claimant short name: | VANDENBURG |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128742 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | Joseph VanDenburg, Pro Se |
| Defendant's attorney: | Hon. Letitia James, New York State Attorney General By: Thomas Trace, Esq., Associate Attorney |
| Third-party defendant's attorney: | |
| Signature date: | February 6, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Joseph VanDenburg, a pro se inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for the alleged loss and/or destruction of his property, namely, two packages of Tony Roma pulled pork and 12 12-ounce cans of Mountain Dew while incarcerated at Mid-State Correctional Facility. The trial of this Claim was conducted by videoconference on January 16, 2020, with the parties appearing at Marcy Correctional Facility and the Court presiding in Albany, New York. Claimant testified on his own behalf; Defendant called one witness. Claimant offered two exhibits. Claimant's Exhibit 1, an affidavit annexed to his Claim, was rejected by the Court as improper hearsay evidence sustaining Defendant's objection. Claimant's second exhibit, a receipt from Walmart, was part of Defendant's Exhibit A and received into evidence as Defendant's Exhibit A-4.Defendant offered one exhibit which was received into evidence over Claimant's objection. The Court offered two exhibits that were received into evidence over Claimant's objection. At the conclusion of Claimant's case and trial, Defendant moved for judgment as a matter of law. After considering all testimony and evidence received at trial and reviewing the applicable law and arguments made by the parties, the Court dismisses the Claim.
Claimant's trial was originally scheduled for January 14, 2020. However, because DOCCS was unable to transport Claimant to Marcy Correctional Facility on that date, the trial was adjourned to January 16, 2020. At the Court's direction, Associate Attorney Thomas Trace ensured that Claimant was notified of the two-day adjournment of the trial by DOCCS.
Hearsay is an out-of-court statement offered for the truth of the matter asserted (see Nucci v Proper, 95 NY2d 597, 602 [2001]). Claimant sought to introduce the affidavit of Toni Martin VanDenburg for the truth of the matter asserted therein rather than call her as a witness. The Court sustained Defendant's hearsay objection and did not receive Claimant's Exhibit 1 into evidence (see e.g. Callender v State of New York, 38 Misc 3d 651, 655 n 5 [Ct Cl 2012]; Williams v State of New York, UID No. 2011-038-108 [Ct Cl, DeBow, J., Sept. 16, 2011]).
Exhibit A consists of 7 pages, which includes two pages of an Inmate Claim Form; a one-page Claim Investigation Report; a Walmart receipt dated August 11, 2016; a one-page form DOCCS Form 1755F; a one-page Food Package Record; and one page entitled "Certification."
Defendant's Exhibit A was marked for identification prior to trial. Claimant did not stipulate to its admittance into evidence and objected to it being received into evidence when offered. After being marked for identification but before received into evidence, Claimant offered page 4 of the exhibit, marked Exhibit A-4, into evidence which was received without objection by Defendant. Although Claimant's exhibit should have been marked as Claimant's Exhibit 1, for efficiency, the Court admitted the exhibit into evidence as Claimant's Exhibit A-4.
FACTS
Claimant testified his mother, Toni Martin VanDenburg, visited him at Mid-State Correctional Facility on August 14, 2016. On that date, Claimant stated his mother informed him that she brought a package which purportedly included, among other things, 12 cans of Mountain Dew soda and two packages of Tony Roma pulled pork. Claimant testified he never received the soda or pulled pork. Claimant offered Exhibit A-4 into evidence without objection by defense, which is a receipt from Walmart on August 11, 2016 indicating Mountain Dew soda and pulled pork was purchased, among other items. Claimant did not call any witnesses. Claimant attempted to offer into evidence an affidavit, marked as Exhibit 1 for identification, from Toni Martin VanDenburg in lieu of testimony. Defendant objected to the receipt of Exhibit 1 as hearsay, which the Court sustained. Claimant stated he wished to call a witness, but did not make arrangements via subpoena or otherwise, to secure the attendance of any witness. Addressing Claimant's agitation, the Court reminded Claimant he was provided sufficient notice of the trial and instructions regarding the issuance of subpoenas. Claimant rested his case, at which time Defendant made a motion to dismiss, and the Court reserved decision.
The Court marked as Court Exhibit 1 a letter from the Court of Claims, dated November 12, 2019, providing notice to the Claimant of the trial date. The Court marked as Court Exhibit 2 a letter from the Court of Claims, dated November 19, 2019, advising Claimant and Defendant of the trial date and instructions regarding dispositive motions and issuance of subpoenas. Both letters were addressed to Claimant at Attica Correctional Facility and included his Department Identification Number. Claimant concedes that he was in custody at Attica Correctional Facility at the time the letters were sent and received Court Exhibit 1. Although Claimant avers he did not receive Exhibit 2, said letter was not returned to the Court and is presumed to have been received (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2d Dept 2006]; Allen v State of New York, UID No. 2007-041-039 [Ct Cl, Milano, J., Aug. 29, 2007]).
Defendant produced one witness, Sergeant Foose (Foose), who testified that Claimant filed an administrative action with DOCCS for the loss and/or destruction of his property. This administrative claim was denied as was an appeal of the decision. Defendant's Exhibit A was introduced through the testimony of Foose. Over Claimant's objection, Defendant's Exhibit A was admitted into evidence (see CPLR 4518).
As stated above, Defendant's Exhibit A-4 was admitted into evidence in Claimant's case in chief.
DISCUSSION
The State as a bailee of an inmate's personal property owes a common law duty to secure the property in its possession (see Pollard v State of New York, 173 AD2d 906, 907 [3d Dept 1991]; 7 NYCRR part 1700). A rebuttable presumption of negligence arises where it is established that the property was delivered to the defendant with the understanding that it would be returned, and that the defendant failed to return the property or returned it in a damaged condition (see Tweedy v Bonnie Castle Yacht Basin, Inc., 73 AD3d 1455, 1455-1456 [4th Dept 2010]; Ramirez v City of White Plains, 35 AD3d 698, 698 [2d Dept 2006]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948, 949 [3d Dept 1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550, 550 [1st Dept 1977]). Thus, "one of the essential elements of a bailment is that the property be taken into the possession of the bailee" (Osborn v Cline, 263 NY 434, 437 [1934]; Edwards v State of New York, UID No. 2018-018-982 [Ct Cl, Fitzpatrick, J., Dec. 3, 2018]).
Here, Claimant failed to present proof in admissible form to satisfy his burden of establishing that the alleged lost property was delivered to DOCCS. Although Claimant submitted a receipt from Walmart indicating that some person purchased pulled pork and Mountain Dew soda (see Exhibit A-4), no evidence was presented as to who purchased the items, that the items were brought to and received by DOCCS, and that the items were intended to be delivered to Claimant. Stated differently, Claimant failed to present any evidence which would link the purchase of the items to the care and/or custody of DOCCS for the benefit of Claimant (see Walker v State of New York, UID No. 2007-030-023 [Ct Cl, Scuccimarra, J., June 19, 2007] [dismissing bailment claim for the claimant's failure to link the specific items lost with evidence of delivery of those specific items to the defendant]). Notably, Claimant's Food Package Record, which was signed by him, does not include the pulled pork and Mountain Dew soda that Claimant alleged DOCCS failed to deliver to him (see Wynder v State of New York, UID No. 2019-015-171 [Ct Cl, Collins, J., June 18, 2019]). Consequently, upon the proof presented at trial, the Court concludes Claimant failed to establish, by a preponderance of the credible evidence, that the property for which he seeks compensation was delivered to and/or received by the Defendant.
Accordingly, Defendant's motion to dismiss, made at the conclusion of trial, is now granted and Claim Number 128742 is dismissed. Any and all other evidentiary rulings and motions on which the Court may have previously reserved or which were not previously determined are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
February 6, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims