New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2000-017-009, Claim No. 98871


The Court found that claimant was entitled to an award of $51.90 for the loss of property which he had transferred to defendant's possession in connection with a housing transfer while claimant was incarcerated in Fishkill Correctional Facility.

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):

Claimant's attorney:
Anthony Walker, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dewey Lee, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 16, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This claim is for negligence in connection with the loss of a pair of hiking boots belonging to
pro se 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.[1]
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 signed (
see, 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 form.

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
prima facie 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 Concord, 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.


June 16, 2000
White Plains, New York

Judge of the Court of Claims

[1] All references to testimony are from the Court's review of the audiotape of the trial unless otherwise indicated.