New York State Court of Claims

New York State Court of Claims

COOKE v. THE STATE OF NEW YORK, #2000-016-051, Claim No. 99150


Synopsis


Decision was made in favor of pro se claimant on property loss claim tried at Sullivan Correctional Facility.

Case Information

UID:
2000-016-051
Claimant(s):
ANTHONY COOK
Claimant short name:
COOKE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99150
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Anthony Cook
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Earl Gialanella, AAG
Third-party defendant's attorney:

Signature date:
July 26, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Pro se claimant Anthony Cook asserts that defendant was negligent in connection with the loss of his property at Sullivan Correctional Facility. The claim was tried at the facility on June 21, 2000. Claimant testified on his own behalf. Defendant called no witnesses.
Claimant stated that on September 4, 1998, he was transferred to the Special Housing Unit (SHU) at Great Meadow Correctional Facility.[1]
In connection with the transfer, his personal property was inventoried and stored in a temporary storage area. Cook said he later learned that his property had been packed by an inmate and that an officer had prepared and signed an I-64 "Personal Property Transferred" form as to the property. Claimant recalled that on September 6, a correction officer brought him his property. Claimant said the officer noted that claimant's Aiwa cassette player was missing. According to claimant, his bag contained another inmate's cassette player and the same was true with respect to his hot pot and headphones – again his own items were missing and had been replaced with those of another inmate. The other inmate's items were apparently confiscated from claimant. Claimant maintains that the bags containing his property should have been sealed until opened in his presence and that the only way the switching of property could have occurred is if another inmate switched or was permitted to switch other items for claimant's property.
In addition to the switched items, claimant maintained that other items were missing as well: Wallaby shoes, Herman Survivor boots, a typewriter kit, tins of food and cosmetics.

Claimant stated that because there were missing items, he would not sign the I-64 form upon checking his property. A review of the Exhibit 1 I-64 form shows that claimant did not in fact sign the "inmate acknowledgment."

Claimant testified that he filed a facility claim on September 6, 1998.[2]

Regarding the lost property itself:
  1. As to the cassette player, claimant said that he had payed $94.98 for it, and had only had it for a month at the time of its loss. An invoice contained in Exhibit 5 shows that $94.99 was paid for the player and that it was shipped on July 13, 1998. A permit contained in Exhibit 5 lists the value at $94.99.
  2. As to the hot pot, claimant said that he had had it for one year and used it two to three times per week. A permit contained in Exhibit 5 lists its value as $20. There is no invoice contained in Exhibit 5 for the missing hot pot, but there is an invoice for what was apparently a replacement pot purchased on September 17, 1998, which lists its price as $21.
  3. As to the typewriter kit, an invoice contained in Exhibit 5 shows that it was purchased on July 27, 1998 for $23.97.
  1. As to the headphones, an invoice in Exhibit 5 appears to show that they were purchased for 13.99 on June 7, 1994. A permit in Exhibit 5 appears to list their value at $20.
  2. With regard to the Herman Survivor boots, no invoice was presented for the pair that was missing. However, claimant submitted in Exhibit 5 two invoices (from September 16, 1998 and November 9, 1998), which show that they cost $50 at that time. Claimant said he had had the boots for one year and only wore them during the winter.
  3. As to the Wallaby shoes, an invoice contained in Exhibit 5 shows that they were purchased for $39.97 on July 20, 1998.
  4. No invoices were submitted for the cosmetics or tinned foods. As to the cosmetics, which claimant described as toothpaste, emollients, etc., he seeks $150. As to the tinned food, claimant seeks $300. He said that the tins varied in size and contained items such as tuna, mackerel, lobster, salmon and clams.
* * *
Claimant testified credibly that his property was missing. In addition, as set forth above, he explained that because it was missing, he refused to sign the inmate acknowledgment on the I-64 form. Moreover, defendant presented no witnesses or other evidence to dispute Cook's claim. Accordingly, I find that as to liability, Cook has made his case by a fair preponderance of the evidence.

With regard to damages,
the measure of recovery is fair market value. See, e.g., Schaffner v Pierce, 75 Misc 2d 21, 24, 347 NYS2d 411, 415 (Nassau County Dist Ct 1973); Phillips v Catania, 155 AD2d 866, 547 NYS2d 476 (4th Dept 1989). I find that the market value is as follows: cassette player ($85); hot pot ($10); typewriter kit ($20); headphones ($5); boots ($30); and shoes ($35) – for a total of $185.
As to the tinned food and cosmetics, claimant had no invoices, but estimated their value at a total of $450. I find that $150 is a reasonable estimate of fair market value of these items.

Accordingly, claimant is awarded the sum of $335 with interest from September 6, 1998 until the date of this decision and thereafter to the date of entry of judgment pursuant to CPLR 5001 and 5002.

LET JUDGMENT BE ENTERED ACCORDINGLY.



July 26, 2000
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]This appears to be a misstatement by claimant; his claim and all relevant documentation refer to Sullivan Correctional Facility.
  2. [2]The admissibility of the September 22 and October 21, 1998 memoranda from a deputy superintendent to claimant was challenged on the grounds that they represented an offer of settlement; final decision thereon was reserved. In any event, the liability finding herein was reached without the use of such correspondence.