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
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.
, 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
, 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
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
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
, 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
, 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
, 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.
, Schaffner v Pierce
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.