New York State Court of Claims

New York State Court of Claims

KASIEM v. THE STATE OF NEW YORK, #2005-019-039, Claim No. 101653


Claimant failed to establish bailment; claim dismissed.

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:
December 12, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Allah Kasiem, an inmate appearing pro se, alleges that certain personal property belonging to him was lost due to the negligence of prison officials during his incarceration in Elmira Correctional Facility. A trial of this matter was held on October 25, 2005 at the Elmira Correctional Facility (hereinafter "Elmira").

Claimant offered his own testimony in support of his claim. Claimant testified that on August 24, 1999 he was directed to pack his personal property because he was being moved

to the special housing unit (hereinafter "SHU"). Claimant testified that he packed his property as instructed and ended up with 8 full bags. Claimant stated that an officer Elliot verified by verbal count that there were 8 bags, then handcuffed him and escorted him to SHU. Claimant testified that he last saw his 8 bags in his cell at which point officers were supposed to take his bags to the property room for safe keeping. Claimant stated that 4 of his 8 bags were missing when he finally received his property in SHU. Claimant argued that the State violated Directive #4934 which governs the temporary storage of personal property when an inmate is moved to, among other places, SHU. Claimant conceded at trial that he did not have his I-64 form from his original arrival in Elmira or when he received his bags in SHU. Nor did claimant offer the testimony of officer Elliot.

At the close of claimant's proof, the State made a motion to dismiss due to claimant's failure to establish a prima facie case upon which the court reserved to allow claimant two weeks from trial to submit post-trial proof. The court waited 30 days from trial before issuing this Decision, but did not receive any post trial submissions from claimant.[1]

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; Heede Hoist & Mach. Co. v Bayview Towers Apts., 74 AD2d 598). Claimant produced Directive #4934, titled "Inmate Property - Temporary Storage of Personal Belongings", which provides guidelines for the temporary securing and storing of personal property when an inmate is moved to, among other places, SHU. In these situations, when an inmate is not able to move his personal belongings, a correction officer must "[t]ake immediate steps to protect the inmate's personal property by securing the cell/cube." (Directive #4934 II [1]).

Here, the court finds that claimant offered no proof other than his testimony that his property was in his cell in 8 full bags prior to his confinement in the SHU. Claimant failed to offer any written acknowledgment of the defendant's receipt of the property or any proof of the property's condition or purported value at the time custody was allegedly transferred to SHU.

Even if the court were to fully credit the claimant's testimony regarding the creation of the bailment at the time of his confinement in SHU and find a violation of Directive 4934, claimant has clearly failed at trial to prove damages. It is well-settled that the court must determine the fair market value of the missing or damaged property, which includes depreciation of the lost items. (
Schaffner v Pierce, 75 Misc 2d 21, 24). Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable. (Phillips v Catania, 155 AD2d 866). No such proof was offered. Moreover, since claimant failed to prove that a bailment occurred he may not recover nominal damages. (Atlantic Mut. Ins. Co. v Noble Van & Stor. Co., 146 AD2d 729).

Based upon the foregoing, the State's motion to dismiss, made at the close of proof and upon which the court reserved at trial, is hereby granted and Claim No. 101653 is hereby DISMISSED.

Any and all motions on which the court may have previously reserved or which were not previously determined, are hereby denied.

The clerk of the court is directed to enter judgment accordingly.

December 12, 2005
Binghamton, New York

Judge of the Court of Claims

[1]Claimant was explicitly advised at trial that he would be allowed two weeks from October 25, 2005 to submit such proof.