New York State Court of Claims

New York State Court of Claims

DILLARD v. THE STATE OF NEW YORK, #2007-044-003, Claim No. 111278


Inmate claimant awarded $80 for personal property lost during transfer between correctional facilities

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: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 8, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim seeking recovery for personal property allegedly lost or destroyed during his transfer from Elmira Correctional Facility (Elmira) to Gowanda Correctional Facility (Gowanda). A trial in this matter was conducted by video conference on November 28, 2007, with the parties appearing at Elmira, and the Court sitting in Binghamton, New York.

Claimant asserts that on December 28, 2004[1] defendant lost a Remington beard trimmer, a Panasonic Walkman, Panasonic headphones and a Lotus Analog/digital watch, all belonging to claimant and in good or perfect condition, for a total loss after depreciation (as estimated by claimant) of $80. Claimant’s institutional claim was approved in the amount of $7, which amount was upheld on appeal.

At trial, claimant testified that he was transferred from Elmira to Gowanda on December 28, 2004. Claimant finally received all of his personal property at Gowanda on March 30, 2005. On the I-64 form detailing the property sent from Elmira to Gowanda, notations were made by the correction officer who unpacked the property at Gowanda that an electric razor/trimmer, a radio/tape player/combo and a watch were missing. There are no indications that any headphones were packed at Elmira, or received at Gowanda. However, in defendant's approval of the claimant's institutional claim, the headphones were not excepted.

Claimant previously submitted to the Court receipts for the beard trimmer (in the amount of $41.97) and the watch (in the amount of $17.75). Claimant did not have a receipt for the Walkman, but testified that he paid $16.97 for it. Claimant also did not have a receipt for the headphones, but he did have a proof of ownership certificate issued at Elmira with the handwritten notation of value in the amount of $23.47. Claimant testified convincingly that this number was written by an officer in the packing room. Claimant testified that the beard trimmer was approximately 1 year old,[2] the Walkman was no more than 10 months old, the headphones were approximately 1 year old, and the watch was approximately 2 years old.

Claimant rested his case at the close of his testimony, and defendant offered neither any witnesses nor any documentary evidence in support of its case.

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]). Claimant met his burden with his uncontroverted and persuasive testimony and his documentary evidence.

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 and claimant's testimony established that the beard trimmer, headphones and watch were more than one year old at the time of the loss, and therefore depreciation shall be applied to arrive at fair market value of those items (Schaffner v Pierce, 75 Misc 2d 21 [1973]), while the Walkman was less than one year old, and thus no deduction for depreciation is warranted. 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 $80.00.

Accordingly, claimant is hereby awarded damages in the amount of $80.00, plus the appropriate statutory interest from March 30, 2005. 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 8, 2008
Binghamton, New York

Judge of the Court of Claims

[1]. The Court previously granted claimant's motion for permission to amend his claim to contain the proper date of accrual, December 28, 2004, but denied the remainder of the motion seeking to add the loss of an AC adapter, based upon claimant's failure to include that item in his institutional claim.
[2]. The institutional claim form he submitted states an age of one year and three months for the trimmer.