Claimant, Jose Rivera, alleges that ten law books belonging to him were lost
while in the custody of the Department of Correctional Services. The trial of
this claim was held on August 23, 2004 at the Elmira Correctional
From the testimony at trial the court finds claimant was removed from his
B-12-2 cell at Southport Correctional Facility (hereinafter "Facility") on
January 22, 2002, which cell was to be "held live" until his return from an
outside medical trip.
Prior to leaving his cell, claimant asserts that he stacked all of his
possessions, including the ten law books, along the farthest wall from the gate
so that they could not be removed by passing inmates merely by reaching through
the bars. However, even though his cell was to be "held live" for him, the
Facility packed up his possessions and moved them from his B-12-2 cell to cell
A-12-11 on January 28, 2002, while he was still away from the Facility. (St.
Ex. A, p 1). On January 29, 2002, claimant returned to the Facility and was
taken to his new cell and discovered that although most of this property was
present, his ten law books were missing.
The State submitted into evidence at trial a memorandum prepared by Correction
Officer Blow, who also testified at trial, establishing that he was the officer
responsible for packing claimant's property. The officer testified that he
packed all of the claimant's property that was in the B-12-2 cell and arranged
for it to be taken to the newly assigned cell. Correction Officer Blow
testified that whatever possessions were present in claimant's original cell
would have been packed and taken to his new cell.
A subsequent memorandum relative to the Facility's investigation of this matter
by Sergeant C. Frost dated February 27, 2002 was also submitted by the State.
(St. Ex. A, p 2). Said memorandum indicates that according to the original cell
inventory sheet, claimant originally had only seven legal books in his
possession, not ten as claimed.
(St. Ex. A, p 2).
It is well-settled that in order to establish a prima facie 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). Here, claimant acknowledged he
had no receipts of purchases for the books nor did he have any I-64s.
Nevertheless, the Facility's own investigation into claimant's initial grievance
confirms that claimant possessed seven law books. (St.Ex. A, p 4). As such,
based upon the foregoing, the court finds that claimant has established by
credible proof that a bailment was created for seven law books, not ten as
That having been said, however, claimant had no proof relative to the value of
these books other than the amounts originally listed in his Inmate Claim Form
varying from $25-$45 per book. (St.'s Ex. A, p 3). For items without receipts,
the court must determine the fair market value of the missing property less
depreciation from the credible evidence presented at trial. (
Schaffner v Pierce
, 75 Misc 2d 21, 24). The court notes that it was
undisputed that the missing books were legal/educational text and, as such,
carry slightly greater value than novels and/or paperbacks. In view of
claimant's testimony that these law books were between one to four years old,
the court finds a value of $15 per book is appropriate for a total of $105 for
the missing seven law books.
The Clerk of the Court is directed to enter judgment in favor of claimant
for the sum of $105 plus interest at the statutory rate from January 29,
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).
ENTER JUDGMENT ACCORDINGLY.