N.Y. Comp. Codes R. & Regs. tit. 7 § 1700.7

Current through Register Vol. 46, No. 45, November 2, 2024

Section 1700.7 - Liability

(a)Property last in control of the inmate.

When property was last in the control of the inmate, there is no presumption that its unexplained loss is the fault of the department or its agents, without further showing that the loss was caused by the negligence of the department or its agents. The department's staff would be negligent if it failed to carry out in an acceptable way its responsibility to take reasonable steps to protect the inmate's property. Examples of negligence by the department or its agents include, among other things:

(1) failure to follow required procedures which failure permits another person to steal, damage or destroy an inmate's property; or

(2) negligently creating a flood, fire or other accident which causes a loss.

(b)Property last in control of the department.

When an inmate's property was last in the control of the department or its agents, and the department fails without good explanation to deliver it in to the inmate or the inmate's designee in the same condition as when received by the department, then there is a rebuttable presumption that the department is negligently responsible for the loss.

(1) To rebut the presumption of negligence, the reviewer must determine that all department staff who had a duty to protect the inmate's property carried out their duties in an acceptable way. If that is not shown or if it is shown that the department's staff failed to meet their responsibilities, then the department will be deemed to have been negligent.

(i) Shipment. When an inmate's property is lost in the process of shipment from a department facility by department staff there is a rebuttable presumption of negligence by the department. The presumption may be rebutted if the investigation shows:

(a) that the department did not receive the property for shipment;

(b) that the department received the property but delivered it to a shipper who could reasonably be expected to deliver it in good condition to its intended destination; or

(c) that the property was received at its intended destination in the same condition as when received by the department.

(c)Comparative liability of the inmate claimant.

If the investigation reveals that there was negligence on the part of both the department or its agents and on the part of the inmate claimant, then the claims reviewer must determine a percentage allocation of negligence causing the loss, and use that percentage in calculating the proper amount to be paid.

N.Y. Comp. Codes R. & Regs. Tit. 7 § 1700.7