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
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
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 ). 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 ). 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.
ENTER JUDGMENT ACCORDINGLY.