New York State Court of Claims

New York State Court of Claims

LOPEZ v. STATE OF NEW YORK, #2002-018-178, Claim No. 103617


Claimant awarded damages in a bailment transaction.

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:
Defendant's attorney:
BY: JOEL L. MARMELSTEIN, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 5, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for personal property which the State allegedly failed to return to him while he was incarcerated at Riverview Correctional Facility. Claimant testified that on December 31, 1998, his property was packed by a correction officer, because he was being sent to the Special Housing Unit (hereinafter SHU). Claimant did not have an opportunity to inventory his property and, therefore, refused to sign the I-64.[1]
On January 22, 1999, claimant was transferred to Gouverneur Correctional Facility (hereinafter referred to as Gouverneur) and his property was packed and/or inventoried by Correction Officer (hereinafter C.O.) Cronkrite.
At that time, claimant had an opportunity to view his property while it was being checked. It was then that he noted certain items were missing and filed an administrative claim for those items on January 29, 1999.[2]
His administrative claim was denied. Claimant served a notice of intention to file a claim upon the attorney general on March 29, 1999. Claimant thereafter timely commenced this action within two years of the date of accrual[3](Court of Claims Act §10[3]).

On cross-examination, claimant acknowledged that his original administrative claims differed from the items he alleges were missing in this claim. He noted that he had not had access to his property before filing his administrative claims. Claimant also explained that some items he included in his claim were not listed on Exhibit 1 or found in mailroom records because other inmates gave the items to him.

The State called C.O. Cronkrite who said he packed all of claimant's available property on January 22, 1999, and that claimant inventoried the property at that time.

To establish a prima facie case of negligence in a bailment transaction, claimant must show that his property was deposited with the defendant and the defendant failed to return it (
Weinberg v D-M Rest Corp., 60 AD2d 550). Once claimant meets his burden, defendant must come forward with proof explaining the loss (Matter of Terranova v State of New York, 111 Misc 2d 1089). The measure of recovery for the loss of bailed property is fair market value, which can be established by evidence of the original purchase price less a reasonable rate of depreciation (Phillips v Catania, 155 AD2d 866; Schaffner v Pierce, 75 Misc 2d 21, 24).
Based upon the testimony and exhibits, to the extent legible, the Court finds that claimant has established that he had his property packed and deposited with the defendant on December 31, 1998 and the following items were missing on January 22, 1999:

two hairbrushes, one pair of Timberlin [sic] boots, one lamp,

four items of lotion/aftershave, four pencils, eight pens,

one pillowcase, one electric razor, one missing slipper,

one pair sneakers, one tape cassette, one sound design tape

player, one towel.

Claimant did not establish the fair market value of the hair brushes, lamp, lotion/aftershave, pencils, pens, pillowcase, electric razor, slipper, tape cassette, or towel, as a result, the Court makes no award for these items. The Court finds based upon the testimony and Exhibit A, and reasonable depreciation, that the value of the one-year-old Timberlin [sic] boots is $40, the two-year-old Sound Design AM-FM tape player is $25, and the New Balance sneakers are valued at $15.

ACCORDINGLY, claimant is awarded $80.00 for his lost property with interest from January 22, 1999 to July 22, 1999, and then from January 3, 2001 to the date of the decision and thereafter to the date of entry of judgment, and it is

ORDERED, that to the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act 11-a(2). All motions not previously addressed are DENIED. LET JUDGMENT BE ENTERED ACCORDINGLY.

November 5, 2002
Syracuse, New York

Judge of the Court of Claims

[1]See Exhibit 1.
[2]Although claimant could not actually demand the return of his property until he was released from the SHU some time in July 2000 (see, 7 NYCRR 302.2) it is clear to the Court from his administrative claim that claimant inspected his property on January 22, 1999 and that date will be used as the accrual date.
[3]For all actions accruing after December 7, 1999, the Court of Claims Act §10(9), as added by chapter 412 of the Laws of 1999, requires prior to filing a claim in this Court for loss of personal property that an inmate exhaust all administrative remedies established by the Department of Correctional Services. A claim must be filed within 120 days of the date the administrative remedies are exhausted.