This claim is for negligence in connection with the loss of a pair of hiking
boots belonging to
claimant Anthony Walker, an inmate at Fishkill Correctional
Facility (hereinafter "FCF"). The claim was tried with respect to liability and
damages on May 25, 2000 at FCF during which claimant testified on his own behalf
and defendant called Correction Officer Steve Buchman as a witness.
According to claimant's testimony, on May 6, 1998, he was transferred from
Housing Unit 10/2 to Special Housing Unit P (hereinafter "SHUP") in FCF.
Claimant testified that prior to being taken to SHUP, he packed his own
belongings in five bags and placed them under his bed, although he was not
instructed to do so.
He stated that he only removed what he needed and never unpacked from there on.
Claimant testified that he was escorted to SHUP separately from his belongings
and that his belongings arrived twenty minutes later. He stated that upon
receipt of the property he was confused as to whether the property contained in
the bags was his because an identification tag on one bag read "HAWKINS" and it
did not contain claimant's DIN number. He stated he was only able to identify
that the contents of the bag were his after a correction officer in P company at
FCF opened the mislabeled bag. Claimant testified that upon examination of his
belongings he found that everything was present except a brand new pair of boots
that he had bought before he was transferred out of Eastern Correctional
Facility (hereinafter "Eastern").
Claimant testified that he became aware that his bags were re-packed when he
received six bags instead of the five that he had packed. He stated that it was
"common sense" that Correction Officer Buchman had re-packed his belongings and
that an officer in P company made a phone call and was able to confirm that
Officer Buchman had repacked the bags. In addition, claimant testified that
along with his belongings was an I-64 Personal Property Form which he never
, Exh. A). The form, which is signed by Correction Officer Buchman,
indicates that two pair of claimant's boots -- one personal and one State-issued
-- were transferred to SHUP on May 6, 1998.
Claimant added that a Corrections Officer was present and that his bags where
under the bed when he left the dorm prior to his transfer. Claimant testified
that he was not present when his bags were tagged or cataloged. He testified
that there were nine other inmates present in the dorm at that time. Claimant
testified that his claim is based on negligence on the part of the State to
properly secure his property.
Claimant described the boots in his testimony as "Wildcat Springs"
winter/hiking boots. He stated that he bought them three weeks before he left
Eastern and that they had come through the package room. He testified that he
had to get a metal shank removed from them before he could take possession.
Claimant testified that he got them back in a few weeks. He testified that the
boots were in his possession when he left Eastern on April 13, 1998. Claimant
produced a Bill of Sale, dated February 10,1998, in the amount of $44.95 and
$6.95 for shipping which was marked as Exhibit 1. Upon questioning by the
Court, claimant testified that the notation of 1 pair of boots represented on
the left-hand column of the I-64 form from when he transferred from Eastern to
FCF, could not have possibly been State issue boots because when you transfer
you are not allowed to wear anything but State issue boots. Claimant testified
that he could not possibly be marked for State issue boots if he was wearing
them on his feet. Claimant added that he was wearing sneakers when Officer
Buchman was filling out the I-64 form. Claimant rested his case without
cross-examination by defendant.
Defendant called Correction Officer Steve Buchman. Officer Buchman testified
that he was employed as a correction officer with the New York State Department
of Correctional Services and that he was working at FCF in May of 1998. He
identified State's Exhibit A as the I-64 Personal Property Form that he had
filled out when claimant moved. He proceeded to identify claimant's DIN number
on the form as 92A0444. Officer Buchman testified that claimant was taken from
Housing Unit 10/2 to SHUP on May 6, 1998.
Officer Buchman testified that when he got to Housing Unit 10/2, Claimant's
property was already packed. He proceeded to testify that he unpacked claimant's
property in the dorm and in the process was marking down, on the I-64 Personal
Property Form, what property Claimant in fact had. When asked by the Assistant
Attorney General to clarify the columns on the form, Officer Buchman testified
that in the left hand column of the form under the printed area marked "Boots,
6" high max" he placed a number 1, representing one pair of personal boots. He
also testified that in the right hand column, in which he had handwritten "STATE
ISSUE," he had also marked that Claimant had 1 pair of State issue boots.
Officer Buchman testified that he made an error in logging in one pair of
personal boots and one pair of State issue boots. He stated that claimant, to
the best of his recollection, had only one pair of boots, which were State
issued, and not of the type claimant alleges were missing. He testified that he
mistakenly documented that claimant had two pairs of boots on the I-64
Officer Buchman testified that the number 1 marked in the left hand column,
representing a pair of personal boots, was incorrect. He proceeded to testify
that the "1" marked in the right hand column, representing a pair of "State"
issue boots, was correct and that Claimant did not have a pair of personal boots
according to the I-64 and when it was written.
On cross-examination, upon being asked why there were six bags instead of five,
Officer Buchman testified that the bags could not be secured (tied) if they were
filled to the top. He testified that he split up the belongings into a
sixth bag in order to be able to properly secure them. When Officer Buchman was
asked by Claimant if he had to go get a sixth bag, Officer Buchman answered in
the affirmative. Claimant proceeded to ask if it was possible that other inmates
could gain access to the property while Officer Buchman was getting the sixth
bag. Officer Buchman testified that the property was secured in claimant's
cubicle, there were no other inmates in his cubicle at that time and that it was
not possible for other inmates to gain access to the bags. When questioned by
the Court if the boots represented in the left hand column labeled "Boots, 6"
high max" were State issue, Officer Buchman answered in the affirmative.
Based on the foregoing proof, claimant seeks damages from the State for its
negligent loss of his personal property. In order to establish a
case of negligence in a bailment transaction, a
claimant must show that his property was deposited with defendant and that
defendant later failed to return it (Weinberg v. D-M Rest. Corp.
, 60 AD2d
550) or returned it in a damaged condition (Schibilia v. Kiamesha
, 16 AD2d 504, 505). Once that has been demonstrated, the burden
shifts to defendant to come forward with proof explaining the loss (Matter of
Terranova v. State of New York
, 111 Misc2d 1089).
Claimant has succeeded in sustaining his burden of proof in this case. The
documentary evidence presented by claimant, in this case the Package List from
Eastern, confirms that he did receive a pair of boots having a metal shank from
Bass Pro Shops on February 19, 1998. Claimant also produced a Bill of Sale,
admitted as Exhibit 1, from Bass Pro Shops which is dated February 10,1998 and
indicates a purchase of Wildcat Springs boots for $44.95 and $6.95 for shipping.
This Court is satisfied that claimant was in possession of these boots when he
was transferred from Eastern to FCF on April 13, 1998.
This Court is also satisfied that Claimant deposited his missing boots with
defendant and that the defendant failed to return them. Exhibit A, the I-64
Personal Property Form from FCF, which was filled out and signed by Officer
Buchman, supports claimant's testimony that he did surrender two pair of boots
to the State, and that the State did take that property into its possession. The
Court further finds that when claimant received his property back, upon arrival
to SHUP, his boots were missing.
The Court has made a credibility determination and has resolved the
contradictory testimony in claimant's favor. Thus, the Court finds that
claimant's property was stolen, lost or misplaced while in the possession of
defendant. The Court further finds, after reviewing the testimony and the
evidence in this case, that claimant is entitled to be reimbursed $44.95 for the
purchase price of the boots and the $6.95 for the shipping charges.
Consequently, claimant is awarded $51.90 with appropriate interest for the loss
of his property.
LET JUDGMENT BE ENTERED ACCORDINGLY.