Claimant, an inmate proceeding pro se, alleges that defendant State of New York
(defendant) negligently lost certain personal property belonging to him when he
was transferred from Southport Correctional Facility (Southport) to Upstate
Correctional Facility (Upstate) on September 19, 2003. Trial of the matter was
held at Elmira Correctional Facility on January 25, 2007.
At trial, claimant testified that when he packed his bags for the transfer, he
had more property than could fit in the four bags he was allowed to transport
with him. Moreover, he had more tapes and books than the rules at Upstate would
permit. He was advised by correction officers that he either had to mail the 23
excess tapes and 18 books to his wife at his own expense, destroy them, or
donate them, presumably to a charitable organization. He also was required to
pay for the expense of shipping the one extra bag of property to Upstate.
Claimant stated that he then filled out a disbursement form authorizing his
inmate account to be charged for the expense of mailing both the books and tapes
to his wife and the bag of property to Upstate. Claimant alleges that his
family advised him in early October that they had not received the items, nor
had he received his bag of property. Claimant filed an inmate grievance, which
was denied on the ground that claimant had refused to sign the disbursement
forms at Southport; he was instructed to send signed disbursement forms to the
package room at Southport. Claimant testified that he had, in fact, signed the
disbursement forms, but because he had a dispute with the officer in charge of
the packing, he was never given a copy of the form.
Claimant's documentation, admitted into evidence at trial, indicates that he
then sent two signed disbursement forms to Southport. He was sent receipts
indicating that his inmate account was encumbered on October 29, 2003 in the
amount of $18.36 for the expense of shipping his property bag to Upstate, and
$11.01 for the cost of shipping the books and tapes to his wife. Claimant again
inquired about the status of the shipments by letter to Southport on November
17, 2003. Claimant then filed an inmate grievance on November 25, 2003, stating
that the disbursements had been completed and approved, but that neither he nor
his family had received their respective shipments.
He sent a letter regarding this inmate claim on December 2, 2003, requesting
that it be processed. The grievance was “resolved” by the Inmate
Grievance Review Committee (IGRC) on December 5, 2003, with the statement that
“[g]rievant's account was encumbered . . . Notified the
Watch Commander at Southport C.F. that grievant's account has been
encumbered” (Exhibit C-1 attached to claim). Claimant appealed this
determination on the ground that he and his family still had not received his
property. The Upstate Superintendent “concurred” with the IGRC's
recommendation on December 18, 2003, and stated on the appeal form that
“grievant's property is being shipped as requested by the grievant.
Grievant's property will be issue [sic] to him when it arrives at this facility.
In view of this information, grievant's request is deemed to have been
granted.” Claimant again appealed, still not having received his
property. Finally, by memorandum dated January 15, 2004, claimant was advised
that Southport had sent the packages out on October 29, 2003, and that he should
pursue a trace/claim with the US Postal Service. Claimant testified that
neither he nor his family ever received the missing items. Defendant rested its
case at the close of claimant's testimony.
The State has a duty to secure an inmate’s personal property (Pollard
v State of New York, 173 AD2d 906 ). A claimant’s burden of
establishing a prima facie case of negligence is satisfied once he demonstrates
the delivery of property to defendant, and the defendant’s failure to
return it in the same condition. The burden then shifts to defendant to come
forward with evidence to “overcome the presumption” (Weinberg v
D-M Rest. Corp., 60 AD2d 550 ). Claimant presented as a credible
witness, whose testimony was completely uncontroverted. Through his testimony
and documentation, claimant established a prima facie case of the existence of a
bailment by a preponderance of the evidence. Because no evidence was submitted
by defendant to overcome the presumption of the bailment established by
claimant, defendant is liable for the value of claimant's lost property.
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 ). 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). Similarly, the audiotapes, which apparently contained messages from
his wife and children, and thus had sentimental value to claimant, unfortunately
have no value under the law other than the cost of the tape itself.
Due to claimant's lack of receipts, the Court has determined damages based on
the value of some of the missing property from the credible evidence presented
at trial. Claimant testified that the books had a value of $187 and were new.
The tapes were similarly less than one year old, and the Court hereby assigns
them a value of $3 per tape. As noted above, the sentimental value to claimant
of the loss of the material recorded on the tapes is not compensable under the
law, despite claimant's understandable distress about the loss of these
irreplaceable communications from his family. Additionally, claimant provided
no evidence or testimony regarding any items allegedly contained in the bag
which was to be shipped to him at Upstate. The Court accordingly declines to
award damages for any loss attributable thereto.
The Court hereby awards total damages to claimant in the amount of $256, plus
statutory interest from October 29, 2003.
To the extent that claimant has paid a filing fee, it may be recovered pursuant
Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.