New York State Court of Claims

New York State Court of Claims

ERDHEIM v. THE STATE OF NEW YORK, #2000-007-517, Claim No. 97545


Claimant, an inmate, seeks damages for typewriter ribbons and transcripts lost or destroyed when he was transferred from one correctional facility to another. Claimant awarded $220, plus interest.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

John L. Bell
Claimant's attorney:
Michael Erdheim, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Frederick H. McGown, III, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
May 23, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


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,[1] 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 89 NY2d 1011).[2]
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 (
see, 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 (
id.). 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,
inter alia, 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, AD2d [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 notes and the court files of plaintiff's matrimonial action" (id. [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 action.
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.

May 23, 2000
Plattsburgh, New York

Judge of the Court of Claims

Although claimant listed his hot pot in his claim, he had actually accepted a settlement of $9.75 for the hot pot in January 1997 from the Department of Correctional Services.
Claimant's subsequent petition for a writ of habeas corpus was denied (Erdheim v Greiner, 22 F Supp 2d 291).