New York State Court of Claims

New York State Court of Claims

KOEHL v. THE STATE OF NEW YORK, #2008-015-094, Claim No. 113876, Motion No. M-75356


Claimant's motion for summary judgment on his bailment claim was granted.

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:
Edward Koehl, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 21, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate pro se, moves for summary judgment on his bailment claim for the loss of a television set and five plastic storage bins. In support of the motion claimant alleges that on March 8, 2007 he was transferred from the honor block at Great Meadow Correctional Facility to the special housing unit (SHU). Claimant was handcuffed as part of the transfer process and could not therefore physically move his property which he asserts in his affidavit "consisted of 4 property bags, a TV and 5 clear plastic storage bins" (claimant's affidavit in support sworn to August 6, 2008, ¶ 6). Directive 4934 submitted in support of the motion states that in those instances in which the inmate is unable to move the property himself, as was the case here, the following procedure is to be followed:
"1. Take immediate steps to protect the inmate's property by securing the cell/cube.

2. As soon as possible, a correction officer will search, list, and pack the inmate's personal property. However, if the inmate is being moved to a special housing unit, the officer shall securely bag the property, prepare and sign Form #2078, ‛SHU Property Process Form,' and deliver property bags to SHU. The officer who receives the property bags will sign and complete Form #2078 and the property will then be searched and inventoried in accordance with #3 below.

3. If the inmate is not able to assume immediate responsibility for his property, it shall be searched, inventoried and stored in a secure location. Form 2064, ‛Personal Property Transferred,' shall be completed by the officer who performs the search and inventory . . ."

Exhibit 4 attached to the motion is a Form 2078 which reflects that four bags of claimant's property were packed by Correction Officer J. Webster and another individual (signature indecipherable) beginning at 9:00 a.m. on March 8, 2007. Receipt of the four bags of property at the SHU is acknowledged by Correction Officer D. McClenning. However, the correction officers responsible for completing the form failed to indicate, in the boxes provided for that purpose, whether a television was or was not present in the cell.

Claimant filed an administrative claim seeking $119.00 as damages for the loss of the television and five plastic bins. That claim was denied on April 18, 2007 on the basis that "Property Form 2078 indicates 4 bags of property was placed in storage". An appeal of the administrative determination was denied on April 23, 2007.

The State as a bailee of an inmate's personal property owes a common-law duty to secure the property in its possession (Pollard v State of New York, 173 AD2d 906 [1991]; see also 7 NYCRR part 1700). A rebuttable presumption of negligence arises where it is established property was delivered to the defendant with the understanding that it would be returned, and that the defendant failed to return the property or returned it in a damaged condition (7 NYCRR § 1700.7 [b]; Ramirez v City of White Plains, 35 AD3d 698 [2006]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 [1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1977]; see also Claflin v Meyer, 75 NY 260 [1878]). Thereafter the burden of coming forward with evidence, that it was not responsible for the loss or destruction of the property, is upon the defendant (Feuer Hide & Skin Corp. v Kilmer, supra; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049 [1981]; Weinberg v D-M Rest. Corp., supra ).

Claimant established through his own sworn affidavit that he owned a television and five plastic bins which were delivered to the defendant's possession but not returned. Claimant avers that the purchase price of the television was $89.00 and the purchase price for the five plastic bins was $30.00. Accordingly, the claimant met his initial burden of establishing that his property was delivered to the defendant with the understanding that it would be returned, that the defendant failed to return the property and the relative value of the property.

In opposition to the motion, defendant states that "[a]s evidenced by the attached SHU Process Form #2078, there are facts in dispute as to whether or not claimant possessed a TV or any storage bins at the time he was transferred to SHU" (Affirmation In Opposition dated August 20, 2008, ¶ 12). As noted earlier, however, the Form 2078 prepared on March 8, 2007 reflects that the correction officers responsible for completing the form failed to check the box provided on the form for indicating that, in fact, a television was not present in claimant's cell at the time his belongings were packed. Such an omission fails to controvert claimant's prima facie showing that he owned a television which was delivered to the defendant's possession but not returned.

Defendant also asserts that the claimant's "conclusory allegations of wrongdoing by officers at the Facility are insufficient" to establish negligence (Affirmation In Opposition dated August 20, 2008, ¶ 13). Such an assertion overlooks the rebuttable presumption of negligence which attaches when the claimant establishes both that the property was last in the possession of the defendant and that the defendant failed to return it (see 7 NYCRR § 1700.7 [b]) .

With respect to value, claimant must satisfy the Court of the fair market value of the items in question (Phillips v Catania, 155 AD2d 866 [1989]). Receipts are the best evidence of value but where, as in this case, the original cost, age and condition of the property is established, the Court may award an amount it finds appropriate. Here claimant avers that the original cost of the television was $89.00 and that it was in excellent condition. Given the age (two years) and condition of the television, the Court awards the claimant $65.00 for the television. As the original cost of the storage bins was $30.00, the Court finds $20.00 reimbursement to be fair and reasonable.

Based on the foregoing, the claimant shall recover from the defendant the sum of $85.00, without interest. Pursuant to Court of Claims Act § 11-a claimant shall also recover the filing fee paid to the Clerk at the commencement of the action.

Let judgment be entered accordingly.

November 21, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated August 6, 2008;
  2. Declaration of Edward Koehl dated August 6, 2008;
  3. Affidavit of Edward Koehl sworn to August 6, 2008 with exhibits;
  4. Affirmation of Paul F. Cagino dated August 20, 2008 with exhibits;
  5. Reply to State's opposition for summary Judgment.