New York State Court of Claims

New York State Court of Claims

O'CONNOR v. THE STATE OF NEW YORK, #2001-010-026, Claim No. 97081


SUNY student left allegedly very valuable negatives in his darkroom cubicle. Defendant was found to be a gratuitous bailee only as to course related materials and not as to the negatives.

Case Information

JOHN W. O'CONNOR The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
MARINO & WEISS, P.C.By: James Marino, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 19, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, a graduate of the State University of New York at Purchase ("SUNY") and a freelance photographer in his early thirties, was enrolled in SUNY's 1997 summer color photography course. The tuition for the course was approximately $450.00. On June 25, 1997,
claimant took a leave of absence from the class because he had obtained a press pass permitting him to photograph events in Hong Kong celebrating the transfer of power from the British back to the Chinese (T:217-18).[1] Claimant knew about the trip for six months prior to his departure (T:350). Claimant alleges that, upon assurances of security from his teacher, William Suttle, and Suttle's technical assistant, Sadrud-Din Shah, claimant left two boxes of color paper and a three ring binder, containing 200 negatives, in his assigned darkroom cubicle located within the color classroom. On July 14, 1997, claimant returned to class and found his cubicle in disarray. His paper was gone and his binder was left open with 68 negatives missing. Claimant estimated the value of the missing negatives to be $68,000.00 (T:332, 335, 339). Prior to the loss, claimant never told anyone at SUNY that he estimated the worth of the negatives to be $68,000.00 (T:356-57). Claimant conceded that he could have removed the negatives from the binder or taken the binder with him, as he had done in the past, without any difficulty (T:340, 348-50, 356). Claimant seeks damages on the theories of bailment, negligence, and intentional/negligent infliction of emotional distress.
Claimant testified that he began working as a freelance photographer at age 16 and has remained active in the field. In the 1997 spring semester, claimant completed a black and white photography printing class taught by Suttle and assisted by Shah. The summer color photography class with Suttle and Shah began on June 16, 1997 and was held two evenings a week in the basement of the Visual Arts building. The class assembled in the black and white classroom and then moved to the color classroom located at the other end of the hall. The color classroom contained approximately 20 darkroom cubicles.
On the first night of class, Shah unlocked the cubicles and each student was assigned a cubicle, which could be locked from the inside when a student was developing film (T:352-53). The students were not provided with keys. According to claimant, Suttle and Shah advised the class that they were the only students using the color classroom during the summer and that the door to the color classroom would be locked after class, so the students could keep their "materials used for class" in their assigned cubicles (T:154). Claimant noted that someone else had stored supplies in his assigned cubicle (T:157).

In March 1997,
claimant was in a car accident and sustained several herniated discs. He testified that, since the accident, he used a cane "off and on *** depending on how I felt" (T:289, 296-97). He obtained a SUNY disability sticker, which allowed him to park next to the Visual Arts building. Claimant maintains that Suttle often met claimant outside and assisted him in carrying things into class. Claimant, however, could and did carry his binder and a notebook while using his cane (T:299).
On June 25
th, claimant's last class prior to his departure for Hong Kong, claimant was purportedly gathering his belongings. According to claimant, Suttle and Shah suggested that claimant leave his things in his cubicle and stated that the items would be secure because they would lock the cubicle (T:163). Claimant testified that, in response to their suggestion:
I said to them, no, I would rather not, let me bring it home, it's not going to take too much time to keep making trips up - - downstairs with the elevator. They reassured me again, both [Suttle] and Shah, that I could leave my stuff in the room, they would lock it, no one would go in there, and that it would [sic] it was my room and when I came back everything would be there

(T:163). Claimant then left the following items in his cubicle: a three ring, eight by ten inch binder with 200 negatives; a box of tools;[2] a box of 100 sheets of eight by ten inch photographic paper; and a box of 25 sheets of 11 by 14 inch photographic paper. Claimant stated that he observed Shah lock the cubicle and the color classroom and then the three men left the building together (T:164). Claimant carried "[n]othing at all" with him that night (T:355).
Claimant and his wife traveled on a 12 to 14 hour courier flight with two stops before landing in Hong Kong. In Hong Kong, claimant used a 35 mm camera and lens that was the approximate weight of his binder left in his assigned cubicle (T:314-15, 325-26). Claimant stated that, during the trip, he used his cane on and off, and, sometimes he leaned on his cane while taking pictures (T:315-18).
Claimant returned to class on July 14, 1997, opened the door to his cubicle, and observed the room in disarray. He testified that, "[t]he gentleman whose cubicle it was, his books were on the floor and on the counter" (T:221). Claimant's binder was open and negative sheets, absent the negatives, were strewn on the floor. He gave the SUNY police a list of the missing items. The missing negatives included: four of the 1993 rededication of the John F. Kennedy Library in Boston, depicting President Clinton and Jackie, John Jr., Carolyn, Robert Jr. and Ted Kennedy; 24 of the 1994 Woodstock Festival; 16 of Mario Andretti's last International Speedway Car Race; four from a model's portfolio; eight of lighting from Florida; eight of nudes and four of New York City nightclub scenes that claimant intended to publish in a book (T:225).[3] The negatives were never recovered.
Claimant explained that individual sheets could be removed easily from the binder and that the negatives he carried to class in his binder changed from week to week (T:348-50). He further stated that there was no reason for him to have brought all of his negatives to class on June 25, 1997, as he knew he was going to make, at most, only 15 prints and there was nothing stopping him from removing a number of the negatives and leaving them at home (T:351). The 68 negatives weighed only "a couple of ounces" (T:340).
According to claimant, he felt that Suttle and Shah had created a negative classroom atmosphere because
claimant had initiated an investigation regarding his missing property (T:262). Claimant felt degraded and testified that, "[a]t least three or four other students gave him dirty looks" and "most of the class didn't talk to me" (T:264). He also stated that, "[o]ne or two other - - of the girls in class, had made comments to me that I was - - I'm the cause of all this and I brought all the problems down on this, and I did it to myself and that they wished that I would leave immediately and just get out of the class" (T:264-65). Claimant testified that his relationship with Suttle prior to the incident was that Suttle, "seemed to be a little jealous because of -- some of my work and things that I've done. He was always trying to show me up on one way or another. So I wouldn't say I had a good relationship with him, but I also wouldn't say that we, you know, that I fought with him" (T:355).
William Suttle, an Adjunct Associate Professor of Photography at SUNY for 25 years, testified that
claimant was one of his students in the spring 1997 black and white photography class and in the summer 1997 color photography class. Suttle and Shah had keys to the black and white and color classrooms and these rooms were locked when class was not in session (T:22-24). Suttle's handwritten class notes for the summer course indicated, "FIRST CLASS-STUDENTS PICKED INDIVIDUAL DARKROOM AND TOLD THEM COULD LEAVE THEIR STUFF (PAPER, PRINTING THAT THE OUTTER [sic] ROOM WOULD BE LOCKED WHEN THE CLASS IS NOT IN SESSION-" (Ex. 20; T:58-59, 73). Suttle testified that the door to the color classroom was locked after each class, but that the individual cubicles remained unlocked throughout the course. According to Suttle, Shah also told the students, as they were selecting their cubicles, that they could keep their "stuff" in their cubicles (T:76, 77, 81). While Shah did not explain what constituted "stuff," Suttle recalled that Shah had advised the students not to leave valuable items in the cubicles (T:119-20, 127). Suttle testified that class-related materials included negatives, photographic paper, and tools (T:55). Suttle was familiar with some of claimant's work and had seen claimant's photographs of the Kennedys and President Clinton, but not the negatives. Suttle was not aware what claimant had left in his cubicle before departing for Hong Kong.
Suttle testified that on July 2, 1997, while claimant was away, some students reported that their belongings were missing from their cubicles (T:88). Pursuant to Suttle's investigation, the missing items were recovered and Suttle learned that another class had been using the color classroom and the cubicles during the summer session (T:89). Suttle did not enter claimant's cubicle at that time.

When claimant returned to class on July 14, 1997, he discovered that items were missing from his assigned cubicle (T:96). Claimant informed Suttle and reported the incident to the campus police. Suttle testified that he never tried to discourage claimant from investigating his loss or pursuing his claim (T:102); nor was Suttle pressured by anyone at SUNY to attempt to influence claimant (T:107).

Sadrud-Din Shah, Suttle's teaching assistant in the spring and summer 1997 photography classes, testified that students moved among the black and white classroom, the color classroom, the hall, and their individual cubicles.
On the first night of the summer class, Shah unlocked the cubicles and each student was assigned to one (T:526-28). The cubicles remained unlocked throughout the course. Shah stated that the purpose of the locks on the cubicles was for a student to lock it from the inside when developing film (T:504).
Shah testified that, at the beginning of the color photography class, he told the students that they could leave their course materials in their assigned cubicles. He stated that the door to the color classroom would be locked after each class; he did not state that the cubicles would be locked (T:437, 450-52, 459
473, 507). Shah explained:
[w]ell, I tell them [the students] you can leave paper in the darkroom, but don't leave anything of value. Don't leave a million dollars in the darkroom. It's sort of a standing joke. If you leave a million dollars, leave it - - give it to me. I'll hold onto it gladly. I tell them don't - - of course, don't leave - - if you have a camera that's worth $2,000, and I just make the number up out of my head, don't leave it there because, I mean, common sense says it's valuable. Don't leave anything in the darkroom that's valuable

(T:505). When asked why he made those statements to the class, Shah responded:
[w]ell, there are other people using the darkroom, and the darkroom is left open. It's an open area. I go back and forth, they go back and forth, they go to the rest room. We don't lock the doors until the end of the night and at the beginning of the class. I don't want anything to happen to anybody's belongings, so I just encourage them, don't leave anything of value in the darkroom

(T:506). When asked if he expected students to leave negatives in their cubicles, Shah replied:
[a]bsolutely not. *** Because negatives are valuable. You don't leave negatives. It's like - - to me, that's like my camera. I would never entrust my camera or my negatives to anyone. I just wouldn't do it

Claimant did not tell Shah that he would be leaving anything in his cubicle during his Hong Kong trip (T:476); nor did Shah give claimant, particularly, permission to leave items in his cubicle (T:477, 508). Shah was vaguely familiar with claimant's work and had viewed some negatives of the Kennedy family and the nudes. Shah did not recall walking out of the building with claimant as he left for vacation. While claimant was away, some students reported photographic paper missing from their cubicles. Shah did not observe a difference in the attitude of the students toward claimant after the incident (T:490).
Daniel Martensen, claimant's classmate in the summer course, testified that Shah had advised the students that they could keep their "stuff" in their assigned cubicles (T:174). Martensen kept "maybe $200.00 worth of stuff" in his cubicle, including photographic paper, film, negatives, a hat, a sweater. The cubicles were at a distance of approximately 10 feet from the students who were working in the color classroom (T:204). Martensen testified, "I know it was told to us that it was safe to leave things in [our assigned cubicles]. How we interpret that is one thing" (T:176-77).

Upon listening to the witnesses testify and observing their demeanor as they did so,
the Court makes the following findings. A gratuitous bailment was created as to claimant's course related materials, i.e., the boxes of photographic paper[4] (see, Dalton v Hamilton Hotel Operating Co., 242 NY 481; J.W. Mays, Inc. v Hertz Corp., 15 AD2d 105). The bailment was for the sole benefit of claimant and defendant had no anticipation of some profit or benefit arising from the bailment (see, Voorhis v Consolidated Rail Corp., 60 NY2d 878). The bailment was not an inducement for claimant's course registration (cf., Fili v Matson Motors, 183 AD2d 324 [car dealer, who provided its customer with a loaner vehicle while the customer's vehicle is being repaired, may anticipate a benefit such as providing customer satisfaction or promoting confidence in the dealership]; Forte v Westchester Hills Golf Club, 103 Misc 2d 621 [cloakroom provided to dinner guest of country club member is bailment for hire based on club membership and dinner expenses]).
In a gratuitous bailment, once defendant has come forward with a reasonable explanation for claimant's loss, i.e., theft committed by a third party, it is claimant's burden to establish that the theft occurred due to defendant's gross negligence (
see, Voorhis v Consolidated Rail Corp., supra). In the instant case, it was defendant's practice to lock the color classroom door at the end of each class and claimant testified that, at the end of his last class before his departure, he observed Shah lock the classroom door. There was no evidence that defendant was negligent in securing the classroom door, nor that the theft was attributable to any negligence on the part of defendant (see, Sun Yau Ko v Lincoln Sav. Bank, 99 AD2d 943, affd 62 NY2d 938 [no proof that burglary was caused by defendant's negligence]; Greco v First Union Natl. Bank Corp., 267 AD2d 278 [bank followed procedures designed to prevent unauthorized access to safe deposit box and there were no signs of forced entry; thus defendant's evidence was sufficient to overcome presumption of negligence for failure to return bailed property]). Thus, there is no basis for finding defendant liable for the loss of claimant's paper (see, Bank of N. Y., v Colnaghi USA, 220 AD2d 327 [bailor did not establish that theft was due to bailee's lack of reasonable care in safeguarding bailed artwork]; cf., Voorhis v Consolidated Rail Corp., supra [gross negligence could be inferred from usher's act of leaving suitcase unattended in a train station]).
With regard to the 68 negatives, the Court finds that no bailment was created.

Delivery, actual or constructive, to the person sought to be held as bailee is not enough to create a bailment; acceptance, actually or constructively, by the latter is equally essential. (Osborn v Cline, 263 NY 434, 437; Cowen v Pressprich, 202 App Div 796, revg. on dissenting opinion of Lehman, J., at Appellate Term, 117 Misc 663, 676.) Acceptance is absent when the property is not such as is usually and customarily left with a custodian in like circumstances and no disclosure of this fact is made.

(Swarth v Barney's Clothes, 40 Misc 2d 423, 424). There is no basis for finding that defendant either knew or could have reasonably expected that claimant would leave such allegedly valuable property in an unlocked cubicle during a more than two week scheduled leave of absence (see, J. W. Mays, Inc. v Hertz Corp., 15 AD2d 105 [no evidence defendant knew or should have known truck contained merchandise; thus no bailment as to truck's contents]; Burke v Avis Corp., 104 Misc 2d 826, 827 ["*** defendant could not have a bailee's responsibility thrust upon it without its consent or knowledge, and thus cannot be held presumptively liable for the property in the trunk of the car on a bailment theory of liability"]; Stephens v Katz Parking System, 75 Misc 2d 690 [it was neither disclosed nor reasonably to be anticipated that the car's trunk contained expensive musical equipment; thus no bailment was established as to the trunk's contents]; Barnes v Stern Brothers, 89 Misc 385 [store was bailee of claimant's pants left in dressing room, but not of undisclosed wallet containing a large sum of money left in pants' pocket]).
The Court does not believe claimant's testimony that, the night before claimant departed for Hong Kong, Suttle and Shah suggested and insisted that
claimant leave his things, including his binder containing 200 negatives, in his assigned cubicle.[5] Nor does the Court believe that claimant observed Shah lock claimant's assigned cubicle. Rather, the evidence established that the cubicles were never locked during the course, except from the inside by a student developing film. Indeed, claimant's own testimony was that Suttle often assisted claimant in carrying claimant's belongings and that on June 25, 1997 the three men left the building together after class. Claimant stated that the 68 negatives weighed only a couple of ounces and claimant concededly could, and did, carry his binder and a notebook while using his cane. It is also noted that claimant's trip to Hong Kong had been planned six months prior to his departure. Under these circumstances, it is beyond belief that, based upon assurances of security from Suttle and Shah, claimant would walk out of the building with Suttle and Shah, carry "nothing at all"[6] and leave behind a binder containing such allegedly valuable negatives.
Finally, claimant failed to establish entitlement to recovery on his theory of negligent/intentional infliction of emotional distress (
see, Johnson v State of New York, 37 NY2d 378; Ferrara v Bernstein, 179 AD2d 79, affd 81 NY2d 895).
Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED. All other motions not heretofore ruled upon are DENIED.


April 19, 2001
White Plains, New York

Judge of the Court of Claims

[1] References to the trial transcript will be preceded by the letter "T."
[2]Claimant does not seek recovery for this item.
[3] At the next class, claimant located, in his cubicle, an empty box which had contained his photographic paper. The words "High School Arts" was written on the box (Ex. 17).
[4] Claimant's negatives will be discussed infra.
[5] The Court rejects claimant's alternative argument that defendant is a volunteer and liable on a theory of negligence.
[6] Claimant's testimony established that he knew that he was going to make, at most, only 15 prints on the evening of June 25th and he testified that there was nothing preventing him from removing a number of the negatives from his binder and leaving them at home as he had done in the past. Claimant was also aware that someone else's belongings were stored in his cubicle.