New York State Court of Claims

New York State Court of Claims

ROESCH v. THE STATE OF NEW YORK, #2003-030-004, Claim No. 105501


Pro Se inmate awarded $180.00 damages in bailment claim

Case Information

JOSEPH M. ROESCH Caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
February 10, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Joseph M. Roesch, the Claimant herein, alleges in Claim Number 105501 that Defendant's agents negligently lost his property when he was transferred from one housing block to another at Sing Sing Correctional Facility (hereafter Sing Sing). Trial of the matter was held at Sing Sing on December 17, 2002.

Claimant testified that on May 1, 2001, "after an altercation with another inmate,"[1]
he was moved from his cell on A-Block to a cell on B-Block. He asserted without contradiction that correction officers "did not afford...[him] the opportunity to pack up...[his] cell," but rather officers themselves did the packing. When his property was returned to him three hours later at his new cell, he noticed that many items were missing. He immediately reported this to the Block Sergeant, who said he would search for Claimant's property. The property was never found.
Claimant filed a facility claim, which resulted in an offer of payment in the amount of $131.00, for property Claimant asserts has a value of $217.41. Claimant did not accept the offer, because he thought the depreciation applied to the value of his lost property was excessive. He also argued that it was fundamentally unfair that depreciation was applied at all, given that the State - in the event of property loss or destruction by an inmate of State property - is reimbursed for the full value. He gave as an example an incident in which he was charged with having destroyed a paperback book some 10 years old, and was directed to reimburse the State the full value of the book as if it were new.

Claimant was able to present receipts for the items he was primarily concerned about, namely his typewriter ($159.00 including shipping) and his moustache trimmer ($34.75 including shipping), as well as a cigarette roller ($5.25), a wire antenna for his radio ($2.00), plastic clothes hangers ($.48), and plastic cooler cups ($.35). [Claimant's Exhibit "1"]. He testified as to the value of typewriter ribbons also lost ($5.49) and furnished an undated receipt for same. [Claimant's Exhibit "2"]. The receipts confirm that the property was purchased new in the latter part of 1999.

No other witnesses testified and no other evidence was submitted.

This claim is one alleging negligence by the alleged bailee in a bailment created between Defendant and Claimant by delivery of Claimant's personal property into the custody of Defendant's employees.
See, generally, Claflin v Meyer, 75 NY 260 (1878); Ahlers v State of New York, Claim No. 82543, Corbett, P.J., December 23, 1991. The State has a duty to secure an inmate's personal property. Pollard v State of New York, 173 AD2d 906 (3d Dept 1991). A delivery of property to the bailee, and the latter's failure to return it, satisfies Claimant's 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 (1st Dept 1977). "Where a bailment is created, a showing that the...[property was] delivered to the bailee and returned in a damaged condition establishes a prima facie case of negligence and the burden shifts to the bailee to demonstrate that it exercised ordinary care...(citation omitted)" Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049,1050 (3d Dept 1981).
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 (4th Dept 1989); Schaffner v Pierce, 75 Misc 2d 21 (NY Co. Dist. Ct. 1973). Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable. Personally meaningful items, such as photographs, have no fair market value. [See, Benton v State of New York, Claim No. 94337, Collins, J., July 8, 1999].
In this case, Claimant has established that he had surrendered certain personal property items to New York State Department of Correctional Services' (hereafter DOCS) custody and control, and that some property was lost while in their custody. The Court is satisfied that Claimant exhausted his administrative remedies.
See, Court of Claims Act §10(9); 7 NYCRR Part 1700. The Claimant presented as a credible witness, whose testimony was uncontradicted. Claimant's testimony concerning the value of the property lost, as well as the receipts presented, together with applicable depreciation, establish the total loss as $180.00. The items were more than one (1) year old at the time of the loss, thus depreciation is fairly applied to arrive at fair market value as required. See, Schaffner v Pierce, supra, at 24.
Accordingly, Claimant is hereby awarded damages in the amount of $180.00 plus statutory interest [§16 State Finance Law; § 5004 Civil Practice Law and Rules], which the Court finds presumptively reasonable, from the date of accrual of May 1, 2001 to the date of this Decision, and thereafter to the date of the entry of judgment pursuant to §§ 5001 and 5002 Civil Practice Law and Rules.

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).

Let Judgment be entered accordingly.

February 10, 2003
White Plains, New York

Judge of the Court of Claims

[1] All quotations are to trial notes or audiotapes unless otherwise indicated.