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
Claimant asserts that on December 28, 2004
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
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,
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 ). 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. Corp., 60 AD2d 550 ). Claimant met his
burden with his uncontroverted and persuasive testimony and his documentary
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 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 ), 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.