Claimant, Lawrence Johnson, an inmate appearing
, alleges a loss of his personal property while in the possession
of correction officers while at the Elmira Correctional Facility (hereinafter
"Facility"). Prior to trial, the parties agreed that Claim No. 94323 was, in
all respects, identical to Claim No. 94687. Consequently, Claim No. 94323 was
dismissed by stipulation of the parties and this Decision relates to the trial
of Claim No. 94687 only, which trial was held at Elmira Correctional Facility on
April 30, 2002.
Claimant testified that on May 17, 1996 he was transferred from the Facility
hospital ward to the Special Housing Unit (hereinafter "SHU"). Claimant stated
that he wanted to take his typewriter and various legal books but was told to
leave all his personal property on the bed at the hospital unit where it would
be packed and delivered to him later in SHU. Claimant was then escorted to SHU
by Correction Officers Eck and Swingle as well as Sergeant Bosch. Once at SHU
Claimant requested his property and received the same a day or two later.
Claimant alleges that a number of items of his personal property were
subsequently missing when delivered to him later in SHU. Claimant alleges that
he was missing a Black's Law Dictionary, a legal encyclopedia, a book by F. Lee
Bailey, a book on constitutional rights, a book on police misconduct, a seven
volume set on criminal proceedings, a West Federal Practice Digest, criminal law
reports, Prisoner Self Help Litigation, earphones, tapes, sweatshirt, and
sweatpants, all totaling $6,440.00.
The State called Correction Officer Lane E. Eck, a retired correction officer
previously employed at the Facility. Officer Eck testified that on May 17, 1996
he was present and transported Claimant from the Facility hospital to the SHU.
Claimant's property was subsequently packed and delivered to him in SHU.
Officer Eck testified that all of the items listed on the I-64, State's Exhibit
A, is exactly what was within his possession at the time it was packed and
exactly what was delivered to him several days later in SHU. Moreover, Officer
Eck correctly pointed out that when the property was delivered to Claimant in
SHU he signed for the same and on the I-64 did not note anything out of the
ordinary nor did he note any item of personal property missing. In short, the
witness testified that he accounted for all items on the I-64 and that all of
those items were delivered to the Claimant without complaint or objection.
Moreover, this witness testified that there were no other items in the
Claimant's hospital room other than those listed and noted on the I-64 at the
time they were packed.
To establish a case of negligence in a bailment transaction, a claimant must
show that his property was deposited with the defendant and that the latter
failed to return it. (
Weinberg v D-M Rest. Corp
., 60 AD2d 550). Claimant failed to sustain
this burden. The Court has no reason to believe that Claimant had in his
possession items other than those listed on the I-64. In fact, when the
property was returned to him on or about May 20, 1996, Claimant signed for the
same without objection and without noting any missing items. Furthermore, while
Claimant submitted some receipts for various items, there was very little to
establish that the allegedly missing items were ever purchased by Claimant in
the first instance. Nevertheless, even if some of those items had in fact been
purchased by Claimant, there was no proof that he had those items in his
possession at the time he left the Facility hospital on May 17,
Accordingly, for the reason outlined above, Claim No. 94687 is hereby
All other motions on which the Court may have previously reserved or which were
not previously determined, are hereby denied.
ENTER JUDGMENT ACCORDINGLY.