Opinion
# 2019-015-171 Claim No. 126335
06-18-2019
GREGORY WYNDER v. THE STATE OF NEW YORK
Gregory Wynder, Pro se Honorable Letitia James, Attorney General By: Michael T. Krenrich, Esq., Assistant Attorney General
Synopsis
Claim alleging the loss of personal property by prison staff was dismissed following trial as claimant failed to establish that the property he claimed was lost was delivered to prison officials.
Case information
| UID: | 2019-015-171 |
| Claimant(s): | GREGORY WYNDER |
| Claimant short name: | WYNDER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126335 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Gregory Wynder, Pro se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Michael T. Krenrich, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 18, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim seeks damages for the loss of certain of the claimant's personal property. Trial of this matter was conducted by video teleconference on June 21, 2019.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision, testified that on January 29, 2015 he was playing cards on his company when two sergeants came and escorted him to the Special Housing Unit for violating prison disciplinary rules. As a result, the property which remained in claimant's cell was packed in his absence. Several days later he was given an opportunity to view his property and discovered that certain property, listed on the Inmate Claim Form attached to the filed claim, was missing. Claimant stated that he has a permit for several of the items he claims were missing which, according to the permit attached to the claim, included a fan, radio, walkman, headphones and adaptor. Claimant also stated that he does not "swap" property with other inmates.
Quote was taken from the audio recording of the trial testimony. --------
Correction Officer Mark Neiertz, who was called by the defendant, testified that he made rounds in the protective custody unit on January 29, 2015 and authored a misbehavior report charging claimant with extortion (Exhibit D). He stated that his partner packed the property from the claimant's cell. This concluded the trial testimony.
The State as a bailee of an inmate's personal property owes a common-law duty to secure the property in its possession (Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]; see also 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 the defendant failed to return the property or returned it in a damaged condition (7 NYCRR 1700.7 [b]; Wikiert v City of New York, 128 AD3d 128 [2d Dept 2015], lv denied 26 NY3d 902 [2015]; Ramirez v City of White Plains, 35 AD3d 698 [2d Dept 2006]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 [3d Dept 1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]). Thereafter the burden of coming forward with evidence that the loss or destruction of the property was not its fault is upon the defendant (7 NYCRR 1700.7 [b] [1]; Feuer Hide & Skin Corp. v Kilmer, supra; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049 [3d Dept 1981]).
Here, claimant failed to meet his burden of establishing that the property he claims was lost was delivered to the defendant. The Personal Property Transferred Form dated February 3, 2015 includes none of the property claimant alleges was in his cell when it was packed. The remaining forms claimant submitted with his claim in order to establish ownership, including a Personal Property Transferred Form dated August 14, 2011 and a Marking Permit dated March 7, 2012, are too remote in time to permit an inference that the property referenced therein remained in claimant's possession on the date it was allegedly packed by a correction officer. Moreover, the investigation performed by Sergeant Zarrelli indicates that other inmates reported claimant would try to sell anything in his cell for "rollies" (Exhibit C). Therefore, upon the proof presented at trial, the Court concludes claimant failed to establish, by a preponderance of the credible evidence, that he delivered the property for which he seeks compensation to the defendant.
Based on the foregoing, the claim is dismissed.
Let judgment be entered accordingly.
June 18, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims