New York State Court of Claims

New York State Court of Claims

REID v. THE STATE OF NEW YORK, #2007-044-002, Claim No. 110176


Claimant established bailment when he was ordered by correctional facility personnel to leave his property in the lobby of prison block. The property was later inventoried outside of his presence and transferred to his cell in SHU. Claimant was partially credible and entitled to judgment for some of the property claimed missing. His failure to establish ownership, delivery, failure to return and/or value was fatal to the remainder of his claim

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

Signature date:
January 10, 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 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 disease”
- 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 typewriter.
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.
Defendant 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.
It is 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 [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]).
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 [1977]). “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 York, 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 [1989]). 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 [1973]). 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.
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).
Let judgment be entered accordingly.

January 10, 2007
Binghamton, New York

Judge of the Court of Claims

  1. One fan
  2. One hotpot
  3. One television
  4. 48 U.S. postage stamps
  5. Claimant's mental health records
  6. Claimant's medical records
  7. 7/21/04 food purchases from the commissary
  8. One book
  9. Daisy legal wheel for a Brother typewriter
  10. Daisy script wheel for a Brother typewriter
  11. One food package
  12. One pair of blacksmith's boots
  13. One polo shirt
  14. Three undershirts
  15. One blanket
  16. One pullover
  17. Two long-sleeved undershirts
  18. One sweatshirt
  19. One walkman
  20. One adapter
  21. One pair headphones
  22. One beard trimmer
  23. One clip-on lamplight
  24. One hooded sweatshirt
  25. One calculator
  26. One dictionary
  27. 46 magazines
  28. Two pair of socks
  29. 30 cassette tapes
  30. One tube of toothpaste
  31. Two headphone extension cords
  32. Two legal dictionaries
  33. Five or six issues of Prison Legal News
  34. Shipping costs
  35. Two pair of fitness socks
  36. One Webster's reference set
  37. Three file folders
  38. Six file folders
  39. Six envelopes
  40. One net bag
  41. One pair sneakers
  42. One Brother ribbon
  43. Four cans of soup
  44. Four cans of tomato juice
  45. Four cans of tuna fish
  46. Two vials of Muslim oil
  47. One watch battery
  48. One light bulb
  49. One ruler
  50. Three sticks of deodorant
  51. One container of foot powder
  52. Two containers of mouthwash
  53. Three bars of soap
  54. One baseball cap
  55. One set of bed sheets
  56. 22 pens
  57. U-clip fasteners
  58. 19 folders
  59. Report covers
  60. 50 plastic clips
  61. Address labels
  62. One television antenna

[1]. Quote taken from the Court's trial notes.
[2]. A complete list of the allegedly missing items is attached to this decision as Appendix A.