New York State Court of Claims

New York State Court of Claims

COTTON v. THE STATE OF NEW YORK, #2006-041-503, Claim No. 108405


Claimant is awarded judgment for the cost of new items of clothing and towels, less depreciation, where defendant offers no explanation for loss of claimant’s property and fails to contradict property values alleged by claimant.

Case Information

1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Thomas CottonPro Se
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Lawrence Dillon, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 28, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This matter arises out of events which occurred when claimant was being transferred from Mid-State Correctional Facility to Fishkill Correctional Facility on October 31, 2002. During the transfer, claimant alleges defendant lost one bag of claimant's personal possessions, and that he is thereby entitled to damages of $1,312.25.
Claimant exhausted his administrative remedies regarding the property loss on August 19, 2003 (see Court of Claims Act § 10[9]; 7 NYCRR Part 1700) and the claim was timely filed on October 15, 2003.
Claimant was the only witness at trial. The defendant called no witnesses. The only exhibit, claimant's Exhibit 1, is a copy of the claimant's claim, with attachments, largely consisting of an inventory of personal possessions, with dollar values assigned, which claimant alleges defendant lost during the transfer.
Claimant testified that during the transfer referred to above, he had four bags of personal possessions which were to be transferred, but that upon arrival at his new facility, only three bags were returned to him.
Claimant's trial testimony detailing his lost possessions was limited to describing articles of clothing and one reference to towels. The items of clothing were identified as new, with price tags still affixed.
Although claimant's Exhibit 1, detailing line by line the personal possessions claimant alleges were lost, includes entries for photographs (valued at $500), cassette tapes (valued at $125), chess sets (valued at $40), and a radio (valued at $37.95), claimant gave no testimony concerning these items, limiting his testimony to lost articles of clothing and towels. Accordingly, as to the items listed in claimant’s Exhibit 1, the loss of which is unsupported by testimony, the claimant has failed to meet his burden of proving the defendant's negligence by a preponderance of the credible evidence.
Defendant called no witnesses and offered no explanation for or defense to the loss of claimant’s personal possessions.
“To establish a prima facie case of negligence in a bailment transaction, claimant must demonstrate that his property was deposited with the defendant and the defendant failed to return it. . . . Once claimant meets his burden, there is a rebuttable presumption that the defendant is negligently responsible for the loss, and defendant must come forward with proof explaining the loss. . . . The measure of recovery for the loss of bailed property is fair market value, which can be established by evidence of the original purchase price less a reasonable rate of depreciation” (Amaker v State of New York [Ct Cl, Hard, J., UID #2006-032-511]
; see Claflin v Meyer, 75 NY 260 [1878]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]; Miceli v State of New York, 179 Misc 2d 424, 428-429 [Ct Cl 1998]).
Claimant met his initial burden of showing that certain items of his were in defendant’s possession and that defendant failed to return them. Defendant offered no explanation for not returning claimant’s property. Accordingly, the defendant is found liable for the loss of claimant's personal property.
On October 31, 2002, the date of loss, claimant signed a statement of “Personal Property Transferred,” a copy of which is attached to Exhibit 1. The statement indicated that four bags were transferred and further indicated what types and amount of clothing and other items were transferred. The relevant items of property listed in the statement include seven (7) T-shirts, three (3) pairs of sweat pants, six (6) sweat shirts and two (2) towels.
Claimant’s Inmate Claim Forms, also part of claimant’s Exhibit 1, were prepared on November 20, 2002 and January 21, 2003, respectively, and state that claimant lost ten (10) T-shirts, five (5) pairs of sweat pants, six (6) sweat shirts (hooded and otherwise) and two (2) towels.
The Court finds that claimant’s lost items of clothing will be limited to those items contained in the statement of “Personal Property Transferred” prepared and signed on October 31, 2002.
As to value, the Court will be guided by the uncontradicted values listed in claimant’s Inmate Claim Form of November 20, 2002 and the amended Inmate Claim Form of January 21, 2003 (see Miceli, 179 Misc 2d at 428).
As set forth above, claimant is entitled to recover the fair market value of his property at the time it was lost, not the cost to purchase such property. The values provided by claimant were for new, unworn, items of clothing. Even so, clothing, particularly so personal an item as clothing, once purchased, even if unworn, depreciates. Accordingly, the Court finds such depreciation to be 25% of the value when purchased.
The claimant is awarded damages as follows: seven (7) T-shirts @ $9.00 ($63.00), three (3) pairs of sweat pants @ $20.50 ($61.50), six (6) sweat shirts totaling $150.45 and two towels @ $23.00 ($46.00). These amounts total $320.95. Depreciation reduces the fair market value of those items to $240.71.
The Court awards claimant the sum of $240.71 for the new clothing and two towels lost by defendant, with interest from October 31, 2002. Claimant is also awarded, as a taxable disbursement, the actual amount of any fee paid to file the claim, pursuant to Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.

September 28, 2006
Albany, New York

Judge of the Court of Claims

[2]. This and other decisions of the Court of Claims may be found at the Court’s website: