New York State Court of Claims

New York State Court of Claims

SHEPHERD v. THE STATE OF NEW YORK, #2007-044-001, Claim No. 109648


Claimant established bailment of property sent from Elmira Correctional Facility directly to SHU storage at Upstate Correctional Facility and then directly to Wende Correctional Facility, and recovered $398 for missing 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. ANDREW CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 8, 2007

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate appearing pro se, alleges that defendant State of New York (“Defendant”) negligently lost certain property belonging to him during his transfers between various correctional facilities. A trial on the matter was held on November 16, 2006, at Elmira Correctional Facility (“Elmira”).
At trial, claimant testified that he was transferred from Elmira to Upstate Correctional Facility (“Upstate”) on or about October 10, 2003. He packed six bags and a typewriter. Four bags and the typewriter were allowed with him on the bus, pursuant to Department of Correctional Services (“DOCS”) regulations, and the other two bags were mailed. Two separate I-64 property inventory forms were filled out at Elmira: one for the four bags and typewriter taken on the bus, and one for the two bags which were mailed.
When claimant arrived at Upstate, he was immediately placed in Special Housing Unit (“SHU”). Claimant testified that inmates in SHU are allowed only a limited number of items in their cells, and that the rest of each inmate's property is stored by the facility. Claimant spent his entire stay at Upstate in SHU, until March 22, 2004, at which time he was transferred to Wende Correctional Facility (“Wende”). Claimant’s testimony is supported by the I-64 form
which lists his property received from Elmira on October 16, 2003, and indicates that it was stored by the facility (the document is stamped “SHU STORAGE”). The same document indicates that all of the items listed as received at Upstate were thereafter received at Wende on April 4, 2004. Claimant signed the I-64 form on October 16, 2003 at Upstate, and also on April 4, 2004 at Wende. He commenced the administrative grievance process shortly after he arrived at Wende. Notably, defendant waived any potential defense that the claim was untimely filed and served by not pleading that as an affirmative defense (Court of Claims Act § 11 [c]).
Claimant's initial contention is that nine bags of his property were apparently transferred from Upstate to Wende. Claimant argues that, since he came to Upstate with six bags, and was in SHU without package privileges for his entire stay at Upstate, there is no way he could have entered the facility with six bags and left with nine. He contends that DOCS officials divided up his property into more bags than he came with, and that he therefore had to pay extra postage fees for the bags that had to be mailed.
Correction Officer Gerald Williams from Elmira testified on behalf of the defendant. Williams' duties include packing inmates' property for transfer to other facilities. Williams stated that the procedure when an inmate is transferred from one facility to another, and goes directly into SHU, is for the inmate to be allowed to remove from his bags whatever items he is permitted to possess in SHU. The bags are then resealed and stored while the inmate remains in SHU.
It appears from claimant's and Williams' testimony, as well as an examination of the various I-64 forms, that claimant did arrive at Upstate with six bags. He was allowed to remove the items he was permitted to have in SHU, and then the six bags were resealed. When he left Upstate, the I-64 form indicates that his possessions in his SHU cell were packed into three bags. When combined with the six bags in SHU storage, claimant had a total of nine bags. It appears that defendant appropriately followed its own regulations in packing claimant's possessions.
Further, claimant provided no evidence whatever regarding any postal charges he may have incurred, nor did he prove that the shipping costs for the five bags
were any different than shipping costs for three bags with the same number of items, and presumably the same approximate weight. Accordingly, to the extent that claimant may have a cause of action against defendant for unnecessarily increasing his postage costs, such cause of action is dismissed.
Claimant's next cause of action
seeks to recover for the following property that he discovered was missing when he reached Wende:
Timberland boots ($ 49.99)
6 shirts ($ 299.00)
14 T shirts ($ 210.00)
7 boxer shorts ($ 50.00)
2 sweat shirts ($ 50.00)
2 sweaters ($ 95.00)
6 - $0.37 stamps ($ 2.22)
9 can food ($ 40.00)
1 box tea ($ 3.00)
3 bowls/lids ($ 3.00)
1 deodorant ($ 1.59)
2 shampoo ($ 12.22)
1 soap ($ 4.00)
shoe polish ($ 0.85)
1 mirror ($ 3.50)
1 hooded sweatshirt ($ 45.00)
1 Muslim oil ($ 10.00)
1 hair dressing ($ 4.80)
3 toothpaste ($ 4.50)
1 lamp ($ 5.00)
3 sheets, 2 pillow cases ($ 45.00)
13 books ($ 300.00)
3 legal books ($ 200.00)
6 magazines ($ 200.00)
2 dictionary ($ 80.00)
3 pray [sic] books ($ 150.00)
15 folders of legal documents ($1,000.00)
640 personal photographs ($5,000.00)

Claimant also asserts that his radio and typewriter were damaged at some point in transit, with values claimed of $49.99 and $250.00, respectively. Claimant seeks a total of $8,168.66 for all these items.
Claimant's I-64 form documenting his property sent from Elmira, when combined with the I-64 form that indicates receipt of his property at both Upstate and Wende, clearly indicates that most, if not all, of the items claimant alleges are missing were not received either at Upstate or Wende. Specifically, the Upstate/Wende I-64 form indicates that none of the above items
were received at Upstate/Wende, although all of them are documented as having been sent out from Elmira.
A bailment is created when personal property is delivered into the hands of another, who is then expected to return it in the same condition on demand (Claflin v Meyer, 75 NY 260, 262 [1878]). Defendant has an obligation to secure an inmate's personal property (Pollard v State of New York, 173 AD2d 906 [1991]). Once a claimant meets the burden 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 [1977]).
In this case, claimant has clearly met his burden of proof regarding the missing items, showing that he duly delivered his property to DOCS, and further showing that when he finally received his property back at Wende, the items listed above were missing. The property, except for any items allowed to be taken into SHU, was in DOCS custody and control for the entire time between October 8 and 10, 2003, and April 4, 2004. Moreover, although claimant was allowed to take some items into SHU, both claimant's testimony and that of CO Williams indicates that the inventory on the I-64 form was made prior to claimant's removal of those permitted items. Defendant introduced no evidence whatsoever that overcame the presumption of its negligence with respect to those items.
With regard to the allegedly broken radio and typewriter, both items are listed on the pertinent I-64 as being received at Wende. Claimant signed the I-64 indicating receipt of the items, with no indication thereon that there was any damage to them. Claimant testified that he was not given an opportunity to test the radio or typewriter when his items were inventoried, and that he first discovered they were broken when he returned to his cell. However, the Court notes that in his claim, claimant alleged that the “radio knob was hanging loose, clearly broken. The frame of claimant's type writer [sic] was broken ... the key board [sic] was broken as well.”
Accepting these allegations as true, it is apparent that claimant would not have had to test the radio or typewriter in order to determine they were broken, as the damage would have been immediately apparent. In that case, claimant's signature on the I-64 form without any indication that the items were broken is fatal to this portion of his claim. The Court finds that claimant has not established that the radio and typewriter were damaged while in defendant's possession. Accordingly, this portion of claimant's claim is dismissed.
The measure of recovery when bailed property is not produced upon demand, or is irreparably damaged, is the fair market value of the property, that is, the value of the original purchase price less a reasonable rate of depreciation (Phillips v Catania, 155 AD2d 866 [1989]). Although receipts are the best evidence of fair market value, a claimant's uncontradicted testimony concerning replacement value may suffice (Watson v State of New York, Ct Cl, Sept. 21, 2006, Scuccimarra, J., Claim No. 108382 [UID # 2006-030-022]). Photographs and other such personally meaningful items have no fair market value (see Benton v State of New York, Ct Cl, July 8, 1999, Collins, J., Claim No. 94337).
Due to claimant's lack of receipts, the Court has determined damages based on the value of the missing or damaged property from the credible evidence presented at trial. As claimant provided no testimony regarding depreciation, the Court has assumed that the items were more than one year old, and has applied depreciation to arrive at fair market value. As noted above, the loss of the photographs is not compensable. Finally, to recover damages for the legal documents, claimant must establish the identity and value of those documents (Johnson v State of New York, Ct Cl, Aug. 23, 2000, Mignano, J., Claim No. 93968 [UID # 2000-029-014]). Claimant failed to show the identity and value of the legal documents, and further did not establish the number of pages or replacement cost thereof (id.). The Court thus declines to award damages for the legal documents.
Claimant is awarded $398.00 in damages, plus statutory interest from April 4, 2004, which the Court finds presumptively reasonable. To the extent that claimant has paid a filing fee, it may be recovered pursuant to the provisions of Court of Claims Act § 11-a (2).
Any and all motions on which the court may have previously reserved or which were not previously determined, are hereby denied.
Let judgment be entered accordingly.

January 8, 2007
Binghamton, New York

Judge of the Court of Claims

[1]. Exhibit 1
[2]. DOCS Directive #4917, “Transferring Inmate Property”, was submitted as part of Exhibit 1.
[3]. Nine bags less four bags sent via bus with claimant equals five bags mailed.
[4]. Although not denominated as separate causes of action, claimant's complaints are the equivalent of two causes of action, for all intents and purposes, and the Court has taken the liberty of addressing them in that manner to avoid confusion.
[5]. At this point, the Court is referring only to those items claimed to be missing, rather than the radio and typewriter, which claimant contends were damaged. The only items about which there may be some question are the nine cans of food, one box of tea and three toothpastes. Those items are listed at the bottom of the I-64 form. However, in its response to claimant's discovery demands, defendant provided incomplete copies of most of the I-64 forms, with the bottom portion - where those items would be listed - missing. Accordingly, the Court has drawn a negative inference against defendant, based on defendant's incomplete discovery response and claimant's credible testimony, that those items were listed as having been sent from Elmira and not received at Upstate/Wende.
[6]. Claim, ¶ 14.