In May 1996, claimant was transferred from
Clinton Correctional Facility Annex (hereinafter Clinton Annex) to Sing Sing
Correctional Facility (hereinafter Sing Sing). Some of claimant's property was
sent in boxes and, according to claimant, he received the boxes at Sing Sing on
June 24, 1996. When he inspected the boxes, he discovered that some of his
property in the boxes had been damaged or lost. He filed a claim on December
22, 1997 seeking damages for a lost hot pot,
damaged typewriter cartridges and lost transcripts.
Claimant explained at the beginning of his testimony that he had been a
practicing attorney for approximately 30 years. In July 1993, he was disbarred
upon findings that he had converted and commingled client funds in excess of one
million dollars (
Matter of Erdheim
, 191 AD2d 105). Thereafter, he was convicted of the
crimes of grand larceny, forgery, perjury and offering a false instrument for
filing (see, People v Erdheim
, 235 AD2d 216, lv denied
Claimant testified that on May 14, 1996 he was transferred from Clinton Annex
to Sing Sing. He was permitted to pack four prison-issued bags with his
personal property. He could not pack all his property in the four bags and thus
he placed additional property in boxes that were sent via the United States
Postal Service. He received the boxes on June 24, 1996 at Sing Sing and
observed that two of the boxes were damaged. Upon examination of the boxes,
claimant discovered that four sets of typewriter ribbons had been severely
damaged, his hot pot was missing and various transcripts were missing.
Claimant initially filed a claim with the Postal Service since he had insured
the boxes. The claim was denied, however, because an employee from Sing Sing
had ostensibly signed for the boxes, indicating they were in an acceptable
condition when received at the facility. Thereafter, claimant filed an
institutional claim. Claimant testified that after he filed his institutional
claim he had a series of meetings with Correctional Officer Rogers. He related
that Rogers received approval to settle his claim as regards the hot pot and
that she attempted to get copies of the missing transcripts. Rogers, however,
was unable to obtain copies of the transcripts.
The evidence at trial leads the court to conclude that the subject boxes were
damaged while in the possession of defendant. Claimant testified that his claim
against the Postal Service was denied because an employee of defendant had
signed for the insured boxes. Defendant did not produce any proof indicating
that the boxes were damaged when received from the Postal Service at Sing Sing.
By the time claimant was allowed to inspect the property, the boxes were
damaged. Since the damage occurred while the boxes were in the possession of
defendant, it is responsible for the damage to the contents of the boxes (
, 7 NYCRR § 1700.7; see also, Weinberg v D-M Rest. Corp
60 AD2d 550).
The court must determine the reasonable value of the typewriter ribbons and
the transcripts (
see, Phillips v Catania
, 155 AD2d 866). Claimant stated that the
typewriter ribbons were new and that they had cost $35. Claimant did not
produce any receipts setting forth the amount paid for the ribbons. The court
found claimant's credibility to be seriously suspect and does not accept his
contention that the ribbons were worth $35. Twenty dollars is reasonable
compensation for the typewriter ribbons.
The issue of valuing the transcripts is more difficult. Claimant testified
that the missing transcripts were from various civil proceedings. He related
that some transcripts were from a matrimonial proceeding in which he was an
attorney for one of the parties from 1984 to 1988. Thereafter, claimant was
ostensibly involved in a fee dispute with such client and some of the
transcripts pertain to hearings related to the fee dispute, which claimant
stated culminated in an award to him of $70,000 for fees and disbursements.
However, the client instituted a malpractice action against him and some of the
transcripts relate to such action, which is still pending.
In his institutional claim, claimant stated that approximately l,000 pages of
transcripts had been lost and he sought reimbursement of $500 (Claimant's
Exhibit 2). He did, however, add a note that if the transcripts could not be
photocopied, the cost of obtaining them would be in excess of $4,000 (
). His subsequently filed claim in this court reiterated an estimated
photocopying cost of $500, with an alternative replacement cost estimated at in
excess of $4,000.
Following the trial, defendant notified the court and claimant that it had
obtained copies of seven transcripts from the law firm representing the
plaintiff in the malpractice action against claimant. Copies of the transcripts
were made available to claimant. After he inspected the transcripts, claimant
wrote to the court and stated,
, that 415 pages were still missing.
The court notes that, on May 2, 2000, the Appellate Division, First
Department, issued a decision on an appeal involving the malpractice action
against claimant by his former client (
Rosenkrantz v Erdheim
[May 2, 2000]).
Claimant had made a motion to dismiss the malpractice action against him. The
Appellate Division affirmed an order denying his request for dismissal.
Interestingly, in its holding the Appellate Division noted that claimant's
"defense will in all likelihood be based principally on his personal
and the court files
of plaintiff's matrimonial action"
. [emphasis supplied]). Moreover, the Appellate Division's decision
reflects that claimant is represented by counsel in the malpractice action. It
would be quite unusual if claimant's attorney did not have copies of the
transcripts he deems relevant to the defense of the
Claimant's representation at trial that he should receive $4,200 for the
missing transcripts appears to the court to be an effort to significantly
exaggerate the actual value of the missing transcripts. After weighing and
considering the evidence, the court finds that claimant will be reasonably
compensated for the lost transcripts by an award of $200.
The Chief Clerk of the Court of Claims is directed to enter judgment against
defendant in the amount of $220, together with interest at the legal rate from
June 24, 1996 to December 24, 1996 and from December 22, 1997 to date of
decision and thereafter to date of entry of judgment.