New York State Court of Claims

New York State Court of Claims

SWIGGETT v. THE STATE OF NEW YORK, #2004-019-020, Claim No. 95379


On submitted issue of damages following trial on liability, claimant awarded $500 for loss of 75 books, but no award for lost legal papers.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 19, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

This Decision addresses the damages sustained by claimant for the loss of personal property caused by the negligence of the State of New York (hereinafter "State"). A trial on liability was held on August 23, 2004 at the Elmira Correctional Facility. This court found the State fully liable for the loss of 75 books and legal papers belonging to claimant. (
Swiggett v State of New York, Ct Cl, September 1, 2004, Lebous, J., Claim No. 95379).

At the conclusion of trial and after discussion with both parties, the court provided both parties additional time to submit proof on damages from which the court would determine whether a further hearing on the issue of damages was necessary or whether damages could be decided upon the testimony and evidence produced at trial, together with post-trial submissions. The parties have made their respective post-trial submissions and the court will address the issue of damages herein.[1]

With respect to the missing 75 books, the State submits two 1991 disbursement forms for books purchased by claimant in 1991 for $10 and $7, respectively. Based on these two purchases, the State takes the average price of those two purchases, namely $8.50, and multiplies that amount by 75 for a total value of all the books of $637.50. Finally, the State argues that 50% depreciation is proper for an award of $318.75. Claimant disagrees with the 50% depreciation and argues a depreciation of 15% is more appropriate. (Claimant's Affidavit, p 15). Additionally, claimant protests the State's failure to engage in post-trial discovery as permitted by the court at trial relative to damages.

At the conclusion of trial, the court permitted claimant to request from the State the production of documents with regard to his inmate account. Claimant's post-trial submission objects to the State's failure to produce such discovery including various facility directives, as well as all his monthly statements, package room records, and disbursement forms from every facility in which he was housed from 1987 to 1997. The State's post-trial submission indicates that the only records located were the two 1991 disbursement forms referenced hereinabove. Otherwise, according to the State, monthly statements are generally destroyed after three years. The court finds no basis to adjourn this matter any further for the purposes of obtaining the items listed by claimant inasmuch as the named directives are not material and relevant to the issue of the value of his missing items and the State has represented that the remaining documents no longer exist.

It is well-settled that for items without receipts, the court must determine fair market value of the missing property less depreciation from the credible evidence presented at trial. (
Schaffner v Pierce, 75 Misc 2d 21, 24). Based upon the testimony and evidence produced at trial, as well as the post-trial arguments made by both parties, the court finds the reasonable estimate of fair market value for claimant's 75 missing books is $500.

With respect to claimant's missing legal papers, the State argues that legal papers have no value, while claimant argues he should be reimbursed $480 representing a cost of $.25 per page to photocopy the missing 12,000 pages. Generally, lost legal papers have no value. (7 NYCRR 1700.8 [4]). However, if the missing legal papers can still be used in a criminal case then the value is contingent on whether or not claimant has produced an estimate for the cost to reproduce said papers. (7 NYCRR 1700.8 [4]). Here, the court is not satisfied that any of the missing legal papers related to any pending legal proceedings nor for that matter did claimant produce cost estimates for reproduction of the lost documents other than his own estimate. In sum, the court finds that there is a failure of competent proof upon which it could award damages to claimant for his lost legal papers and, as such, declines to award any damages for claimant's lost legal papers.

The Clerk of the Court is directed to enter judgment in favor of claimant for the sum of $500 plus interest at the statutory rate from December 2, 1996.


October 19, 2004
Binghamton, New York

Judge of the Court of Claims

[1]Claimant's post-trial submission was labeled as a "Notice of Motion." However, the court has treated said papers as claimant's post-trial submission as agreed upon by the parties at trial and not as a separate post-trial motion.