New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2006-013-507, Claim No. 102354


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:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 2, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The claim herein was filed on April 24, 2000 and sounds in a bailment for the loss of certain of Claimant's personal property while he was an inmate assigned to Wende Correctional Facility (Wende). The essential underlying facts are not in dispute. Claimant's personal property was packed up on August 12, 1999 for a move from Wende to Franklin Correctional Facility (Franklin). Claimant departed on August 13, 1999, a move which included stops en route at Auburn, Elmira, Downstate, Washington, Clinton Annex and Barehill Correctional Facilities before reaching Claimant's last destination at Franklin on or about August 18, 1999.

Claimant's personal property was packed up into five draft bags. The Department of Correctional Services (DOCS) transported four of the bags and the fifth draft bag was sent to Franklin from Wende by the United States Postal Service, at Claimant's expense. On August 25, 1999, some seven days after his arrival at Franklin, Claimant was given three of the four bags for which DOCS assumed the responsibility to transport. On September 3, 1999, Claimant was given the fifth draft bag, which had been transported by the U.S. mail. This claim seeks recompense for the loss of the contents of that fourth bag which was never delivered by DOCS, and Claimant contends that his claim accrued on August 25, 1999, the date when he became aware that this bag was missing.

Initially I find that Claimant has established the elements of a bailment, to wit, that items of personal property were delivered into the hands of DOCS; that the missing items were not

returned to Claimant, despite his demand for the same, and that the Defendant has not explained the loss of the property. I find that the Defendant was the bailee of the missing property and that Claimant has made out a prima facie claim by demonstrating that the property was not returned upon demand. A presumption arises that the loss occurred through the negligence of the Defendant. There has been no rebuttal of this presumption, and thus the Claimant is entitled to recover damages for the loss of the items of personal property.
The Defendant seemed to focus in part on Claimant's purported failure to have filed an appeal from the determination of his initial facility Inmate Claim on December 17, 1999, offering to settle the claim for $114.00. While the Defendant raised the affirmative defense that the Claimant failed to exhaust his administrative remedies, this defense must be stricken. This claim accrued in August 1999, and Court of Claims Act §10(9), which does require the exhaustion of such remedies, was not effective until December 7, 1999 (L 1999, ch 412;
and see Stroud v State of New York, 184 Misc 2d 876).
Regardless, Claimant did utilize at least his initial administrative remedy by filing inmate claims relating to this loss in and around September 7, 1999 (Exhibit A), the result of which was the Defendant's offer of $114.00. As Claimant perceived that to be unsatisfactory, he brought the claim herein seeking recompense for his missing personal property, with the total amount of damages alleged to be $2,133.53. Since the Defendant seemingly acknowledges that it failed to deliver the said fourth draft bag to Claimant upon his demand therefor, the balance of this decision will address the items of loss particularized by Claimant, his entitlement to compensation therefor, and the depreciated value thereof. Attached to his claim was an I-64 form, the inventory of property when he was packed up on August 12, 1999, and another I-64 when he was first unpacked on August 25, 1999. The Defendant provided a third I-64 dated September 3, 1999, which inventoried the contents of the fifth bag received by mail.

Claimant testified, persuasively, that there was a missing I-64 form, prepared at Wende, which solely reflected the contents of the bag that was mailed. This has some significance because it would appear to show that not all of Claimant's possessions delivered to Wende authorities were listed on his August 12, 1999 I-64 form.

Also appended to his claim as Exhibit C are a number of receipts for mail-order items and commissary purchases, as well as selected pages from mail-order catalogs ostensibly to show the cost of items that are allegedly missing, and finally a price list from the commissary showing the prices of food and nonfood items. I address first a number of items from the commissary for which there are either receipts, albeit with no dates listed, and/or a listing of the costs. The following items: fan,[1]
toothbrush, toothbrush holder, two soaps, syrup, three boxes of rice, dictionary, bowl, two stick deodorants, toothpaste, and three mirrors, have a total cost of $24.89, and, after adjusting for depreciation, Claimant is awarded $17.50.
Next, Claimant listed several items for which no receipts or dates of purchase were available, but for which catalogs and prices were offered: one fitted sheet, two pillowcases, a blanket, four towels, three gym shorts, three winter hats, one pair of gloves, one pair of sunglasses, a set of Aiwa headphones, and one pair of pajamas, all of which have listed catalog prices of $184.64, and for which I award the sum, after adjustment for depreciation, of $93.50. Claimant sought recompense for a Timex watch (Ironman) for which he supplied a receipt dated October 27, 1995 for $42.91, and for which, after adjusting for depreciation, I award $25.25. Claimant alleged the loss of 17 audio tape cassettes, some of which he testified were new, and some were old, and appended a catalog page showing a variety of such tapes, each priced at $15.00. He contended that their value for recompense here was $9.00 each. However, without receipts showing the date of purchase or the amount paid per tape, I limit the recovery to a total of $76.50. With respect to the claim for Fila sneakers, for which no receipt and date of purchase are offered, I find that even though the I-64 form for August 12, 1999 only shows two pairs of sneakers, one pair of sneakers was not included in the pack up for the missing I-64 for the mailed draft bag. Thus, when Claimant received 1½ pairs on August 25, 1999, and one pair on September 3, 1999, one sneaker was in the missing bag. Accordingly, he is entitled to recompense for one complete pair of sneakers, and I award him $15.00 for that loss.

I decline to make any award for (1) the shower cap, as no receipt, catalog or commissary price has been provided; (2) four photo albums (500 photos) valued at $1,000.00 with no dates of purchase, prices or descriptions noted; (3) the generalized, undated and unspecified claim for legal papers valued at $50.00, or (4) the $50.00 for the cost of filing this claim, including the filing fee (the recovery of which is addressed separately below) and for copying and mailing costs, for which there is no entitlement (
i.e., see Court of Claims Act §27). Finally, with respect to the claim of $586.00 which Claimant testified reflected his personal cost for a transcript which he had procured at a cost of $4.00 per page for 142 pages, I allow no recovery therefor. The Defendant offered into evidence, without dispute or refutation by Claimant, a portion of DOCS Directive No. 2733, dated November 22, 1991 (Exhibit A, p. 34), which addresses inmate personal property claims and which implies that if the missing transcript pertains to a criminal case for which there is no further right of appeal, or is not part of a pending or future legal proceeding, then such papers hold no more than sentimental value which DOCS suggests has no compensable value. The applicability of this directive was supported by the testimony of Dan Vaesneske, an Institution Steward at Orleans Correctional Facility for 20 years. Claimant, although given the opportunity to expound thereon, presented no evidence for the need, use or purpose of such transcript, let alone for what proceeding it transcribed. Accordingly, since there has been no demonstrated need or purpose for such papers, I award nothing more than a modest amount for lost archival-type materials of $40.00.
I therefore find that Claimant has been damaged in the total amount of $267.75.

Accordingly, Claimant is awarded the sum of $267.75, with appropriate interest from August 25, 1999, until February 25, 2000, six months from the accrual of this claim, with a suspension of interest pursuant to Court of Claims Act §19(1) until April 24, 2000, the date of filing of his claim, and with appropriate interest thereafter.

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). All motions not heretofore ruled upon are now denied.


March 2, 2006
Rochester, New York

Judge of the Court of Claims

  1. [1]Defendant stressed that no clip-on fan is listed on the pack-up I-64, but Claimant did submit a receipt which reflects the purchase of such a fan, and I find that one was missing.