New York State Court of Claims

New York State Court of Claims

LOPER v. THE STATE OF NEW YORK, #2008-013-512, Claim No. 107222


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:
Attorney General of the State of New York
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 3, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The claim herein was filed on January 21, 2003 and sounds in a bailment for the loss of certain of Claimant's personal property while he was an inmate assigned to Wende Correctional Facility (Wende). It is alleged that a total of 12 magazines, with a total cost of $135.48, were missing from a “book box” at Wende on or about November 17, 2002.

It appears that inmates such as Claimant who were housed in the Special Housing Unit (SHU) at Wende were permitted to keep up to ten books/magazines (magazines) in their cell at any one time while in SHU. Inmates were permitted to have a larger number of magazines in their personal property in their cells while in general population, and thus while they were assigned to SHU, those additional magazines were stored in a “book box.” Once a week SHU inmates were allowed to switch any or all of the SHU maximum of ten magazines.

It came to pass that when Claimant went to “switch” magazines on or about November 17, 2002, he allegedly discovered 12 magazines missing from his “book box,” and it is these magazines for which Claimant alleges a bailment. Claimant filed an institutional grievance with regard to the allegedly lost materials, and thereafter he exhausted his administrative remedies and commenced this action (Court of Claims Act §10[9]).

Some facts are not in dispute. It appears that Claimant was involved in an SHU to SHU transfer. He was received at the Wende SHU on or about October 16, 2002, at which time a Personal Property Transfer form, commonly referred to as an I-64 Form, was completed and signed by Claimant and which enumerated, as relevant here, an inventory of 24 magazines, 11 books, two prayer books and one dictionary, for a total of 38 items (Exhibit A).

The number of personal magazines/books that Claimant had in his personal property at any given time during this period has an elusiveness that is hard to pinpoint. This is significant inas-much as it is his burden to establish his loss.

In a memorandum recommending denial of Claimant’s inmate claim, Correction Captain Martin Kearney, who also testified at trial, referenced the pack-up I-64 form from Auburn Correctional Facility preceding Claimant’s transfer to Wende, noting that it did not list a number of magazines, but writing that as of November 27, 2002 Claimant had a total of 37 magazines in his “book box” (Exhibit A). I note that this recitation by Captain Kearney, whose credibility is not in question, is not memorialized on an I-64 Form cosigned by Claimant.

Regardless, the October 16, 2002 I-64 shows a total of 38 items. On November 17, 2002, Claimant alleges that he had ten items in SHU, but that his “book box” was short 12 magazines, presumably having 16 items therein to equal the 38 items Claimant brought to Wende, although this recitation of the number of items is not memorialized with the signature of any correction officer or civilian employee of the Department of Correctional Services (DOCS).

It is difficult to reconcile this with Captain Kearney’s count ten days later on November 27, 2002, of 37 magazines in the “book box” to which must be added the ten magazines Claimant held in SHU.

Adding to this confusion is the next inventory in the record, the I-64 form completed and signed by Claimant on March 11, 2003, as he was transferred from Wende SHU to another facility which reflects 27 magazines, two books and one dictionary for a total of 30 items (Exhibit A).

I am left to rely upon the documentary proof, the I-64 Form of October 16, 2002 showing a total of 38 items, and the one of March 11, 2003 showing a total of 30 items. While there was testimony that inmates may trade, swap or lend such magazines with other inmates, and thus the inventories are ever fluctuating and therefore unreliable, the I-64 forms provide a supportable basis on which to assess the number of missing magazines. Indeed, if I were to use the October 16, 2002 I-64 total of 38 items, there is nothing in the record to reflect the additional magazines that Captain Kearney counted as part of the total of 47 magazines (ten in SHU and 37 in the book box) on November 27, 2002.

So this documentary record establishes a discrepancy of eight magazines. Initially I find that Claimant has established the elements of a bailment, to wit, that items of personal property were delivered into the hands of DOCS; that the missing items were not returned to Claimant, despite his demand for the same, and that the Defendant has not explained the loss of the property. I find that the Defendant was the bailee of the missing property and that Claimant has made out a prima facie claim by demonstrating that the property was not returned upon demand. A presumption arises that the loss occurred through the negligence of the Defendant. There has been no rebuttal of this presumption, and thus the Claimant is entitled to recover damages for the loss of the items of personal property.

Claimant has appended a variety of receipts for mail order items, as well as selected pages from mail order catalogs, ostensibly to show the cost of items that are allegedly missing, and disbursement forms reflecting the purchase of certain magazines. Of course there is no precise inventory indicating which of the ordered magazines were missing, although Claimant has listed some on his facility claim. Nonetheless, a review of the appendices to the claim shows an approximate average per magazine price of $8.50 for eight magazines, or a total of $68.00, and since Claimant’s facility claim notes an average age of the listed magazines of one year, I diminish this value for age and depreciation to $45.00.

Accordingly, Claimant is awarded the sum of $45.00, with appropriate interest from November 17, 2002. It is ordered that to the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2). All motions not heretofore ruled upon are now denied.


November 3, 2008
Rochester, New York

Judge of the Court of Claims