New York State Court of Claims

New York State Court of Claims

KILPATRICK v. THE STATE OF NEW YORK, #2008-030-001, Claim No. 110599


In bailment claim, State found liable after trial for inmate claimant’s property loss. Uncontradicted testimony of claimant, and some receipts, establish damages in the amount of $221.00. Did not establish exhaustion of administrative remedies relative to copy of trial transcript

Case Information

Claimant short name:
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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:
Third-party defendant’s attorney:

Signature date:
January 22, 2008
White Plains

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See also (multicaptioned case)


Victor Kilpatrick alleges in his claim that defendant’s agents at Green Haven Correctional Facility negligently lost and damaged his property during his transfer within the facility. Trial of the matter was held on November 30, 2007.

Mr. Kilpatrick testified that on December 11, 2004 property in his cell was packed up outside of his presence for his transfer to the special housing unit [SHU] within the facility. To his knowledge, an inventory form was not completed at the time the property was packed in the cell. On December 14, 2004, in the presence of Officer Austin, Mr. Kilpatrick reviewed the property that had been packed up, and noticed that some property was missing and that other property was damaged. He advised Officer Austin immediately as they unpacked the bags that the typewriter - which came out of one bag first - had been damaged. Mr. Kilpatrick said: “It came out in pieces. Officer Austin made a note on my I-64 form that the typewriter was damaged.”[1] [See Exhibit 2]. On that same form, the officer noted Mr. Kilpatrick’s statement that a silver cross and chain as well as transcripts were missing. [Ibid.].

Inventory forms completed upon his transfer earlier in February 2004 from Auburn Correctional Facility to Green Haven [Exhibit 5] were submitted, as well as local permits for a chain, cross, and typewriter [Exhibits 3 and 6], a receipt from the vendor for the chain and cross generated by the person who gave him the gift [Exhibit 4], and a package room receipt showing receipt in the facility of fifty (50) cigars on November 3, 2004. [Exhibit 7]. With regard to the cigars, Mr. Kilpatrick said that there were twenty-six (26) cigars in his cell when he was moved to SHU.

Claimant’s facility claim was denied. [Exhibit 1]. The initial review form indicates that “all items packed form 2078 in cell”, and is signed by Correction Officer D. Smith. [Ibid.]. On appeal, the facility claim was again disapproved, with the indication “Damage to typewriter is cosmetic. Alleged loss of other items cannot be verified.” [Ibid.].

The facility claim form lists a typewriter ($80.00), a silver cross ($13.00) and silver chain ($43.70) , 28 religious oils ($14.00), 15 crochet hooks ($25.60), 20 clothes hangers ($2.40), a lock ($4.14), a jar of peanut butter($1.20), a jar of jelly ($1.60), 26 cigars ($13.00)[2] and a lighter ($.60). [Exhibit 1].

The claim filed in this court lists the typewriter ($110.00), the cross ($15.00) and chain ($42.00), 41 oils ($41.00), crochet hooks ($22.50), a lock ($4.00), a trial and sentencing transcript ($60.00), 18 clothes hangers ($2.70), and 26 cigars ($13.00). [Claim Number 110599].

On cross-examination Mr. Kilpatrick explained that the values he placed on the typewriter were different on the facility claim and on the claim filed here only because when he filed the facility claim he did not have documents to refer to. On the local permit the value for the typewriter is stated as $110.00. [Exhibit 3]. Similarly, because the silver chain and cross were a gift, he had estimated values until a family member generated the receipt from the vendor to reflect the actual purchase price of $57.00. [See Exhibit 4]. The discrepancies between the receipt from the vendor [Exhibit 4] and the local permit [Exhibit 6] are because he did not know the value when he entered the facility since it was a gift.

He conceded that he never filed an inmate claim form listing a sentencing transcript, and thus did not exhaust his administrative remedy with regard to that item. He said that the value amounts he indicated in the claim filed in this court were “lowered already” and he was withdrawing his application with respect to some items purchased in the commissary because Green Haven would not provide commissary receipts when he requested them. Thus, he said, the only items for which he was seeking recovery at this point were the damaged typewriter, valued at $110.00, the silver chain, valued at $42.00, the silver cross, valued at $15.00, the religious oils, valued at $41.00; and the cigars valued at $13.00.

Claimant argued that facility directives provide that when property is packed up ownership is effectively presumed since its possession, if not owned, would result in disciplinary action. Thus, he urged, the I-64 inventory forms completed at Auburn also “show that this is the property I brought into Green Haven - and that I owned it.” [See Exhibit 5]. Further violations of facility directives concerning the temporary storage of property occurred here, he said. He argued that directives concerning the temporary storage of property, while they provide initially that an inmate is supposed to pack up his property, when property is packed up outside an inmate’s presence for a housing change, correction officers are mandated to follow the procedures set forth in the directive, and to protect the property from theft. The correction officer, Mr. Kilpatrick testified (while reading from facility directives), should
“. . . ‘search, list and pack personal property’. . . the cell should be secured, the bags should be secured, and the I-64 inventory should have been filled out there in the cell. Not done there. The inventory was taken at SHU with Correction Officer Austin - the property was not inventoried when packed up to move to SHU. There is a box for transporting the typewriter. Since it wasn’t placed in the box, it got damaged. Had they followed the directive by recording the contents, and not leaving things behind and packing it properly the loss and damage would not have occurred. The directive continues with the requirement that the property should be ‘protected from theft. It is recommended that the property be secured, adequately identified and stored in a secure area until the inmate’s return to general population.’ Any discrepancies are supposed to be noted on the I-64.”

The I-64 form submitted, dated at Auburn on February 10, 2004, and dated as received at Green Haven on February 12, 2004, notes the religious oils and the typewriter. [Exhibit 5]. As noted above, a combination of local permits, a package room receipt, and the receipt generated by the family member and the vendor, support claimant’s case. [See Exhibits 3, 4, 6, 7].

No other witnesses testified nor was any other evidence submitted.

This claim is one alleging negligence by the alleged bailee in a bailment created between defendant and claimant by delivery of claimant’s personal property into the custody of Defendant’s employees. See generally Claflin v Meyer, 75 NY 260 (1878). The State has a duty to secure an inmate’s personal property. Pollard v State of New York, 173 AD2d 906 (3d Dept 1991). A delivery of property to the bailee, and the latter’s failure to return it, satisfies Claimant’s burden of establishing a prima facie case of negligence. The bailee is then required to come forward with evidence to “overcome the presumption.” Weinberg v D-M Rest. Corp., 60 AD2d 550 (1st Dept 1977). “Where a bailment is created, a showing that the . . . [property was] delivered to the bailee and returned in a damaged condition establishes a prima facie case of negligence and the burden shifts to the bailee to demonstrate that it exercised ordinary care . . . (citation omitted)” Board of Educ. of Ellenville Cent. School v Herb’s Dodge Sales & Serv., 79 AD2d 1049, 1050 (3d Dept 1981).

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 (4th Dept 1989); Schaffner v Pierce, 75 Misc 2d 21 (NY Dist. Ct. 1973). Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable.

In this case, claimant has credibly established that he surrendered certain personal property items to New York State Department of Correctional Services custody and control, and that the property was not returned and/or was damaged after being taken into DOCS custody. Claimant appears to have exhausted his administrative remedies at least with respect to some of his property. [See Court of Claims Act §10(9); 7 NYCRR Part 1700].

Claimant’s testimony was uncontradicted, and supported by at least some receipts and a credible explanation as to his rationale for arriving at the values claimed.

The total loss, therefore, is established in the amount of $221.00.

Accordingly, Claimant is hereby awarded damages in the amount of $221.00 plus statutory interest [§16 State Finance Law; § 5004 Civil Practice Law and Rules], which the Court finds presumptively reasonable, from the date of accrual of December 14, 2004, to the date of this Decision, and thereafter to the date of the entry of judgment pursuant to §§ 5001 and 5002 Civil Practice Law and Rules. To the extent 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 22, 2008
White Plains, New York

Judge of the Court of Claims

[1]. All quotations are to trial notes or audiorecordings unless otherwise indicated.
[2]. Mr. Kilpatrick was unsure of how he ascribed a $13.00 value to the 26 missing cigars, given that he noted that they were at a cost of $1.50 each. By the court’s calculations, it appears that he used a value figure of $.50 rather than $1.50.