New York State Court of Claims

New York State Court of Claims

OWENS v. THE STATE OF NEW YORK, #2006-044-002, Claim No. 108568


Inmate's uncontradicted, credible testimony and documentation in his claim for lost property was sufficient to establish bailment of television and other items.

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: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 1, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Howard M. Owens, an inmate appearing pro se, alleges that defendant State of New York (“defendant”) negligently lost certain personal property belonging to him when he was transferred from Elmira Correctional Facility (“Elmira”) to Wende Correctional Facility (“Wende”) in February 2003. A trial was held in this matter on October 11, 2006 at Elmira.

At trial, claimant testified that on February 17, 2003, he was told to bring his personal property to a packing officer, as he was being transferred to Wende. He brought his belongings to be packed, and filled out an I-64 form. He testified, persuasively, that the packing officer would not pack his 12-inch black and white television with the other items, but rather that the packing officer indicated that the television would have to be shipped separately, and that a separate disbursement form would have to be completed to transfer money from his inmate account for the cost of mailing. Claimant testified that the packing officer told him the television would be boxed up and that claimant would receive a copy of the disbursement form when the television was received by the business office. Claimant further testified that the packing officer told him that the television could not be listed on the I-64 form, because it was not being transferred with his other personal items.

In addition to the missing television, claimant also asserts that a plastic storage unit and earphones were damaged during the transit, and further alleges the loss of a package of tobacco and one pair of sweatpants. On cross-examination, claimant admitted that the tobacco and sweatpants were taken from him when he was about to board the bus for transfer to Wende, and stated that these items were thrown in the garbage in his presence. When asked whether the tobacco was taken because it was contraband, claimant testified that he had been advised by the packing officer that he could take tobacco on the bus, as long as the package was unopened. Claimant further stated that he believed that the applicable prison directive allowed tobacco on the bus, again as long as it was unopened. When asked whether the sweatpants had been taken because prison directives provided that only state-issued clothing was permitted on the bus, claimant indicated he was not aware of such a directive at that time. Claimant also testified that the packing officer told him to list the sweatpants on the I-64 form even though he would be wearing them on the bus.

When claimant arrived at Wende, the Elmira I-64 form was missing, and his two bags were open with the security seals broken.[1] Claimant was required to fill out a new I-64 form at Wende in order to receive his possessions.[2] The Wende I-64 form notes that the storage container was broken, and also indicates receipt of only one pair of sweatpants, rather than the two pairs indicated on the Elmira I-64 form. Claimant also testified that the first time he tried to use the earphones, he discovered that they did not work properly.

On cross-examination, the Assistant Attorney General (“AAG”) showed claimant the investigative memorandum prepared by Elmira officials.[3] That memorandum stated that claimant did not have a television at the time of pack-up, and stated “[i]t is our conclusion” that claimant gave the television away when he learned he would be transferred. The AAG asked claimant whether he had given his television to another inmate. Claimant strenuously denied giving the television away. The AAG then asked claimant whether he had even possessed a permit for the television. Claimant responded by providing a copy of his “Special Commissary Purchase Request” for the television.[4] When the AAG told claimant this was not a special permit, claimant indicated he was not aware of any other form, and that this was the form he produced when requested by prison officials.

Defendant introduced only one exhibit at trial, which was a certified record from Wende of documents pertaining to this claim. Defendant did not introduce into evidence any of the directives referenced during claimant's cross-examination, nor did defendant advise the Court of the appropriate identifying numbers of these directives. Defendant called no witnesses, and made a motion to dismiss at the close of claimant's case, contending that claimant had not proved that a bailment had occurred with regard to the television. Defendant conceded the damage to the storage unit, and advised the Court that it had no position with regard to the headphones.

A review of the documentation attached to claimant's claim indicates that he pursued and exhausted all appropriate administrative remedies (see Court of Claims Act § 10 (9); 7 NYCRR Part 1700).

Claimant presented as a credible witness, whose testimony was essentially uncontradicted. Through his testimony and documentation, claimant established a prima facie case of the existence of a bailment to the Court's satisfaction through his testimony and documentation. Once a claimant meets the burden in a bailment case of proving that his property was deposited with the defendant and that the latter failed to return it, the burden shifts to the defendant to overcome the presumption of its negligence (Weinberg v D-M Rest. Corp., 60 AD2d 550). While any directives pertaining to the “contraband” tobacco or wearing of state-issued clothing on the bus might have been controlling regarding the taking of the tobacco and sweatpants, defendant introduced no such evidence of any directives. Claimant's uncontroverted testimony was that he had been advised by prison officials that he would be permitted to

take/wear those items on the bus. With regard to the television and the lack of any notation regarding it on the Elmira I-64 form, the Court does not view the form as dispositive. The special commissary receipt establishes that the television was in claimant’s possession at Elmira. Under the circumstances established by claimant's credible testimony, the packing officer advised him that the television would be shipped separately from his other personal property and thus would not and could not be noted on either I-64 form. Given the lack of any evidence to the contrary, the Court accepts claimant's testimony as having met the required burden of proof. Defendant did nothing to controvert the presumption of liability established by claimant's testimony and documentation.

Claimant introduced into evidence receipts for all the items he claimed were missing or broken.[5] Each item was less than one year old and accordingly, the issue of depreciation need not be considered. The receipts establish claimant's total loss at $94.89.[6] Therefore, after due deliberation, the Court finds for claimant in the amount of $94.89, plus the appropriate statutory interest from March 2, 2003.

Any and all motions on which the court may have previously reserved, or which were not previously determined, are hereby denied.
Finally, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).


November 1, 2006
Binghamton, New York

Judge of the Court of Claims

[1]. The Elmira I-64 form, submitted as Exhibit 1, was returned to claimant without explanation over one year later, on June 21, 2004. Prior to that date, prison officials advised claimant in writing that this “pink copy” of the I-64 form, which was to have been included in the bag when originally packed for Wende, could not be located (see Exhibit 3).
[2]. Exhibit 2.
[3]. Exhibit A.
[4]. Exhibit 6.
[5]. See Exhibit 6 for all items except the sweatpants. The receipt for the sweatpants was attached to claimant's claim.
[6]. The Court did not include the shipping fees submitted by claimant in its determination of claimant's loss.