Claimant, an inmate appearing pro se, alleges that defendant State of New
York (“defendant”) negligently lost certain personal property
belonging to him during a cell transfer at Elmira Correctional Facility
(“Elmira”) on July 22, 2004. A trial in this matter was held at
Elmira on November 16, 2006.
At trial, claimant testified that on July 22,
2004, he packed his personal property in his cell in F-Block at Elmira into 12
draft bags, plus a television and an electric typewriter, for transfer to
G-Block at Elmira. He put the packed property on a dolly and moved it into the
G-Block lobby. At that point, he discovered that he was going to be moved from
a ground floor cell to a cell located on the second floor. He objected to this
because of a medical problem - alleged in his claim to be a groin injury, but at
trial claimant described the problem as “pulmonary
- and refused to leave the lobby to go to his new cell. As a result, he was
taken to Special Housing Unit (“SHU”) in handcuffs, and without his
property. Claimant asserted that none of the correction officers requested that
his property be secured. He testified that when he received his property on
July 25, 2004, he was brought only four bags of property and the electric
In his claim, claimant listed 62 items of property which he
alleged were missing as a result of this incident. Included among those are
numerous food items, a television, lamp, radio/cassette player, fan, hot pot,
clothing, books and tapes.
Claimant seeks a total of $977.00 plus an additional unknown amount for items
for which he did not know the price. In support of his claim, claimant
submitted numerous purchase receipts and disbursement request forms for the
allegedly missing property, facility permits for the television and
radio/cassette player, and an I-64 form listing an inventory of claimant's
property when he was sent to SHU. The I-64 form indicates that claimant was not
present when the property was inventoried, and claimant did not sign the form on
that date. Claimant filed an institutional claim for his loss, which was
denied. He appealed the denial, and the appeal was also denied.
presented no witnesses, and at the conclusion of trial, moved to dismiss
claimant's case on the ground that claimant failed to prove that the allegedly
missing items were actually delivered into defendant's possession.
worth noting that defendant never provided claimant with a copy of the
“package room list of all items received [by him] at Elmira . . . during
July 2003 - July 2004” as requested by claimant in the Notice for
Discovery and Inspection dated April 21, 2005. This failure is despite
claimant's two motions to compel discovery, defendant’s admission that its
efforts to obtain such list were unsuccessful and defendant’s
representation that it would continue its attempts to obtain the list by other
means (Reid v State of New York
, Ct Cl, Apr. 11, 2006, Sise, P.J., Claim
No. 110176, Motion No. M-71287; Reid v State of New York
, Ct Cl, Sept. 7,
2005, Lebous, J., Claim No. 110176, Motion No. M-70530 [UID # 2005-019-565]).
Notwithstanding such representation, at the time of trial, nearly 19 months
after claimant's original discovery demand, defendant still had not advised
claimant of the status of its response.
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 ). Defendant has an obligation to secure an inmate's personal
property (Pollard v State of New York
, 173 AD2d 906 ). 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.
., 60 AD2d 550 ).
Even when there is no formal transfer of
property, a bailment is still implied when one comes into lawful possession of
the property of another (Mack v Davidson
, 55 AD2d 1027 ).
“The determination as to whether the relationship is one of bailor and
bailee turns on whether there is a relinquishment of exclusive possession,
control and dominion over the property” (Alston v State of New
, Ct Cl, Aug. 19, 2005, Schweitzer, J., Claim No. 108146 [UID #
2005-036-500]). When claimant's property was removed from his possession,
defendant had “exclusive possession, control and dominion” over that
property, as shown by the packing officer's inventory of the items, the packing
and transfer to SHU of those items, and the packing officer's written notation
that claimant was not present during these steps. Any omissions may therefore
be chargeable to defendant (see McKinley v State of New York
, Ct Cl, Nov.
9, 2005, Scuccimarra, J., Claim No. 107293 [UID # 2005-030-036]), depending on
the credibility of claimant's testimony.
Claimant presented as a partially
credible witness, whose testimony was totally uncontradicted, and his claim was
verifiable by some documentary evidence. The Court finds that claimant has
established the required elements and his loss by a preponderance of the
evidence as to the fan, hot pot, radio/cassette player, adapter, headphones and
headphone extension cords, two typewriter print wheels, food purchased from the
facility commissary one day prior to claimant's confinement to SHU, 30 cassette
tapes and one law dictionary. Although defendant contended that claimant did
not adequately prove delivery of these items to defendant, the Court found
claimant's testimony persuasive, when combined with the facility permits and
purchase receipts for each of those items, particularly given that claimant was
not present when his property was inventoried, and none of the items was listed
on the I-64 form.
With regard to the balance of the items for which recovery
was sought, claimant did not establish the elements required for a bailment,
including ownership, delivery, failure to return, and/or value. Claimant did
not prove that the clothing, bedding items and magazines allegedly missing are
not the same items that are listed as being among claimant's belongings on the
I-64 inventory form. Claimant’s testimony concerning the food and other
disposable merchandise (other than those items purchased the day before
claimant's confinement to SHU) was simply not credible, particularly given that
some of the receipts claimant provided for the food were dated approximately one
year prior to the date that the claim accrued. For the balance of the items,
including the television, no receipts were submitted to the Court and claimant
did not testify regarding their value.
The measure of recovery when bailed
property is not produced upon demand 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 ). Receipts, which
are the best evidence of fair market value, established that some of the items
were more than one year old at the time of the loss (although claimant listed
those items as being “11 months” old in his facility claim form),
and therefore depreciation shall be applied to arrive at fair market value
(Schaffner v Pierce,
75 Misc 2d 21 ). Claimant's documentation
regarding the missing items, when combined with the purchase receipts and
facility permits, and after adjustment for depreciation, establishes the total
loss at $394.26. Accordingly, claimant is hereby awarded damages in the amount
of $394.26, plus the appropriate statutory interest from July 25, 2004.
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).
Let judgment be