New York State Court of Claims

New York State Court of Claims

GILL v. THE STATE OF NEW YORK, #2002-015-566, Claim No. 100928


Court awarded $367.00 in damages for DOCS loss of personal property.

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 G. Gill, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 23, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this pro se inmate claim took place at a term of Court held at Marcy Correctional Facility (Marcy) on May 14, 2002. The claim seeks to recover damages for the negligent loss of claimant's personal property incident to a facility transfer from Mid-State Correctional Facility (Mid-State) Special Housing Unit (SHU) to Auburn Correctional Facility (Auburn) on October 1, 1998.

When the case was reached on the Court's trial calendar the claimant indicated to the Court that he was not prepared for trial because his legal paperwork had been lost during his transport to Marcy for trial. The Court called as witnesses the correction officers who were the claimant's escorts on the trial date and they testified as follows[1]
: Correction Officer Robert Blim stated he was assigned to Auburn Correctional Facility and was one of the officers involved in the transportation of the claimant to Court. The witness further stated that the only paperwork of which he was aware was that which claimant had in his possession in the courtroom. He testified he was not aware of any property lost incident to Mr. Gill's transfer to Marcy for trial. The witness stated that one additional officer also accompanied the claimant from Auburn to Marcy.
The Court then called the other escort officer who identified himself as Correction Officer David Walawender. The witness stated that claimant had been transferred earlier from another facility to Auburn on his way to Marcy for the trial. Although claimant told the officer that he was traveling with legal material no such materials were found at the time of his arrival at Auburn; nor were such materials found by the witness following his search of the transport vehicle. Claimant was advised that the trial could be adjourned to the next prison term of the Court but claimant elected to proceed with his trial.

Thereafter claimant testified that an I-64 form was completed at Elmira Correctional Facility and his legal materials were deposited into a Court bag which was then taken from him. The materials included his legal folder containing a copy of his claim and five I-64 forms he had intended to offer as evidence. Defense counsel was questioned as to whether he had copies of any of claimant's I-64 forms and responded that he had two such forms, one dated September 30, 1998 and the other dated October 4, 1998. Claimant then testified that his missing legal materials included receipts and a letter from the Deputy Superintendent of Security at Mid-State which he hoped to offer in evidence to show discrepancies in the handling of claimant's property at Mid-State which, he alleged, were contrary to Department of Correctional Services (DOCS) directives.

In describing the subject matter of his claim the claimant testified that he was transferred to Mid-State SHU from Franklin Correctional Facility on June 24, 1998. At Mid-State he was allowed to choose certain property to retain while in the SHU. He stated that his property was displayed on several tables and mixed with property which he did not recognize as his own. He alleged that he was not present when his property was inventoried for the I-64 form at Mid-State in violation of a DOCS directive[2]
. After his transfer from Mid-State to Auburn claimant discovered that certain of his property, including 17 typewriter ribbons, assorted underwear, and 6-7 personal shirts were missing. The Court inquired as to when claimant discovered that the items listed in his claim were missing. He testified that the loss was discovered on October 1, 1998 following his arrival at Auburn.
On cross-examination the claimant testified that prior to his transfer to Auburn from Mid-State he received four separate I-64 forms but that he signed only one such form. He stated that upon arriving at Auburn he received three of five bags of property, a fourth bag was subsequently received along with an I-64 form, and finally in March 1999 he received a box containing some of his property and yet another I-64 form.

The claimant testified that the 17 missing typewriter ribbons were valued at $3.50 per ribbon[3]
; the 5 packages of designer envelopes were valued at $5.68 per package and the10 packages of designer copy paper were valued at $11.98 per package. He also testified that 6 new polo shirts valued at $12.00 each were missing along with a $21.95 dress shirt and 5 boxer shorts valued at $6.98 each. Claimant was unable to recall the date on which he purchased the dress shirt and admitted that he did not request a copy of the federal civil rights complaint despite having been granted poor person status in that action. Claimant also acknowledged that the signed I-64 form dated September 30, 1998 contained no reference to designer copy paper or envelopes among the items inventoried.
Defense counsel moved to dismiss the claim for the claimant's failure to prove a prima facie case of bailment, particularly with regard to the designer copy paper and envelopes which were not listed on the I-64 form prepared at Mid-State and signed by claimant on September 30, 1998. The Court denied the motion.

This claim is one alleging negligence in securing and delivering personal property placed in the custody of DOCS employees by an inmate (
see Pollard v State of New York, 173 AD2d 906). Where a claimant proves delivery of property to the bailee and the bailee's failure to return it he or she has satisfied his or her burden of establishing a prima facie case of negligence. The bailee is then required to come forward with evidence to "overcome the presumption" (Weinberg v D-M Rest. Corp., 60 AD2d 550) by establishing that it exercised ordinary care (see, Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049).
The Court finds that claimant met his initial burden with regard to certain of the allegedly missing property and that the defendant failed to demonstrate that it exercised ordinary care with regard thereto. Thus, the Court finds the defendant liable for the loss.

With respect to value, claimant must satisfy the Court of the fair market value of the items in question (
Phillips v Catania, 155 AD2d 866). Receipts are the best evidence of fair market value but where, as in this case, claimant offered uncontradicted testimony that the receipts he intended to offer in evidence were lost through no fault of his own and testified to the values listed in the claim for the missing items and their condition, such testimony, if found by the Court to be credible, may be accepted as some proof of value.
The Court in this instance credits the testimony of the claimant and awards him $367.00[4]
in damages inclusive of interest. No award is made for the designer copy paper and envelopes for which no bailment was proved or the dress shirt for which no age, condition or replacement value was established.
The Clerk is directed to enter a judgment in accord with this decision.

August 23, 2002
Saratoga Springs, New York

Judge of the Court of Claims

[1]Synopses of the testimony of the witnesses are drawn from the Court's own notes and the tape recording of the trial.
[2]Identified in the claim as DOCS Directive #4933. Although the claim referenced an item attached as "Exhibit A" no such attachment was included.
[3]The claim listed their value at $7.20 per ribbon.
[4]17 typewriter ribbons @ $3.50 = $ 59.50; 6 polo shirts @ $12.00 = $72.00; 5 undershorts @ $6.98 = $34.90; legal documents (517 pages) @ .20 = $103.40. Total = $269.80 plus interest in the amount of $97.13 = $366.93