New York State Court of Claims

New York State Court of Claims

BONEZ v. THE STATE OF NEW YORK, #2008-038-115, Claim No. 108128


Inmate claimant awarded damages in the amount of $365.00 for negligent bailment of gold wedding band and Star of David.

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 8, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate in a State correctional facility, filed this claim seeking damages for property that was allegedly lost when claimant was transferred from Upstate Correctional Facility (CF) to Auburn CF in the fall of 2002. The trial of this claim was conducted by videoconference on February 13, 2008, with the parties appearing at Clinton Correctional Facility (CF) in Dannemora, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony; defendant offered no witnesses. Claimant offered two documents into evidence, both of which were received in evidence.[1] Defendant offered one document into evidence, which was received into evidence. The State has a bailee’s common-law duty to secure the property of inmates within the State’s prison system, and it may be liable for failing to carry out that duty (see Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). An inmate may assert a claim against the State sounding in negligent bailment (see id.). To establish a prima facie case, a claimant must establish that he or she delivered property to facility officials and that the property was not returned (see Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; Alston v State of New York, 9 Misc 3d 1126[A], 2005 NY Slip Op 51796 [U], *2 [Ct Cl 2005]). An inmate’s establishment of a prima facie case creates the presumption of a negligent bailment, and shifts the burden to the State to demonstrate that the loss was due to circumstances not within its control or that the property was damaged without its fault, or by establishing that it exercised ordinary care (see Alston, supra; Jackson v State of New York, UID # 2007-044-010, Claim # 109373, Schaewe, J. [Mar. 22, 2007]). The prima facie case may also be rebutted by evidence that the bailed property was not, in fact, lost. The instant claim seeks compensation in the amount of $654.00 for the loss of a watch and three items of jewelry, and the Court concludes that defendant is liable to claimant for two of the four items at issue.

Claimant’s testimony and documentary evidence demonstrated the following. When claimant arrived at Upstate CF in October 2001, he possessed a gold wedding band, a gold chain with a Star of David, and a Casio watch (see Claimant’s Exhibit 1, at 15; Claimant’s Exhibit 2) (hereinafter “watch and jewelry”). On September 12, 2002, claimant’s “SHU in cell property”[2] was collected by a Department of Correctional Services (DOCS) correction officer nicknamed “Big John Bobby” in preparation for claimant’s transfer to Auburn CF. Claimant’s “SHU in cell property” was packed into four property bags in his presence, and inventoried on a “Personal Property Transferred” Form (an “I-64 Form”) that was signed by claimant (Claimant’s Exhibit 1, at 13). Claimant also gave his watch and jewelry to “Big John Bobby.” Those items were segregated from claimant’s “SHU in cell property” and were not recorded on the I-64 Form. “Big John Bobby” told claimant that the watch and jewelry would be shipped to Auburn CF either in the four property bags that would accompany claimant or separately to the Inmate Records Office (IRO) at Auburn CF.

Claimant received his four bags of “SHU in cell property” at Auburn CF on September 18, 2002, and several bags of “late property” on October 10, 2002. His watch and jewelry were not in any of those property bags, and claimant thereafter filed an administrative claim for the loss of those items (id. at 17-18). The claim was investigated by DOCS Sergeant A. Lane, who issued a report dated October 28, 2002, which stated that inmates’ “valuables” are not shipped with “Inmate Property” but are “processed with records”(id.). Sgt. Lane’s report indicated that he had contacted the IRO, that claimant’s valuables were in that office, and advised claimant to contact “the IRC”[3] (id.). Claimant received Sgt. Lane’s report on October 28, 2002, and immediately contacted the Auburn CF IRO and requested his watch and jewelry. That same day, claimant received a memorandum from “Kris” in the IRO, to which was attached claimant’s “new personal property card with the contents of [his] personal property listed on it” (id. at 24-25). The personal property card indicated that claimant’s Casio watch and a “Y/M Chain” were in the possession of the IRO (id.). Sgt. Lane’s report was later amended on February 4, 2003 to indicate that claimant’s gold chain and Casio watch were in the IRO safe, but the wedding band was not (id. at 32). Neither Sgt. Lane’s report or the property card referenced the Star of David.[4]

Claimant filed an administrative claim on December 4, 2002 seeking compensation for the loss of his watch and jewelry, which was rejected and disapproved on February 24, 2003 by L.J. Dickes on the grounds that: (1) records indicated that a Casio watch was in the possession of the IRO, (2) no wedding band or Star of David was ever listed “in property”, and (3) no receipts were submitted for the missing items (id. at 33-34). Claimant’s subsequent administrative appeal of Dickes’ decision was denied by Jeanne S. Nickels, the Auburn CF Coordinator of Inmate Accounts, on April 11, 2003 (id. at 41-42). In her determination, Nickels noted that a neck chain and a Casio watch “have been verified to be in the personal property room.” She further noted that while a wedding band had been listed on claimant’s I-64 Form when he was transferred to Upstate CF in October 2001 (see id. at 15), the wedding band was not listed on the I-64 Form when he was transferred to Auburn CF, nor was it “listed on [his] personal property card with his other valuables” (id. at 41). Nickels’ decision did not comment upon the Star of David.

After listening to claimant testify and observing his demeanor as he did so, the Court finds that claimant was a credible witness. Upon consideration his testimony and all of the other evidence received at trial, the Court finds that claimant has proven by a preponderance of the credible evidence that when his belongings were being packed at Upstate CF, he delivered to defendant his Casio watch, a gold chain, a Star of David and a wedding band. These valuables were not properly inventoried by Upstate CF staff prior to their transfer to Auburn CF. Claimant’s watch and jewelry were received by the Auburn CF IRO, as evidenced by Sgt. Lane’s October 28, 2002 report. Although claimant’s Casio watch and gold neck chain remained in the custody of the Auburn CF IRO, his wedding band and Star of David were lost at some point between the time that Sgt. Lane confirmed that these items were in the possession of the Auburn CF IRO and the time that “Kris” sent the memorandum to claimant identifying his personal property in the IRO. Accordingly, the Court finds that claimant has established a prima facie claim for negligent bailment of claimant’s Star of David and wedding band.

In opposing the claim, defendant submitted only one exhibit containing two documents. The first document is a form signed by claimant on September 18, 2002 indicating that he viewed his property in the Auburn CF “SHU-D property room” and that all of his property was accounted for (Defendant’s Exhibit A, at 2). However, claimant credibly testified that he believed that Big John Bobby sent his watch and jewelry to Auburn CF separately from the property that claimant viewed in the SHU-D property room, from which the Court draws the inference that he was “signing” for the “SHU in cell property” items that are not the subject of this claim. Therefore, the Court accords this document no weight with respect to the loss of claimant’s Star of David and wedding band.

The second document is the memorandum that “Kris” sent to claimant on October 28, 2002, to which is appended the personal property card that identified claimant’s personal property that was in the possession of the Auburn CF IRO. This document shows that the Auburn CF IRO was in possession of claimant’s Casio watch and gold neck chain, and demonstrates that the Auburn CF IRO did not have possession of the Star of David and the wedding band on October 28, 2002; it does not prove that DOCS had not come into possession of those items on October 10, 2002. Accordingly, defendant has demonstrated that it did not lose claimant’s Casio watch and gold chain, but claimant’s prima facie case of negligent bailment of the wedding band and Star of David is unrebutted, and the Court concludes that the State is liable to claimant for the loss of those two items.

The measure of recovery when bailed property is not returned is its fair market value, i.e. the original purchase price of the property less reasonable depreciation (see Phillips v Catania, 155 AD2d 866 [4th Dept 1989]). “Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable” (Rush v State of New York, UID #2007-030-019, Claim No. 110361, Scuccimarra, J. [June 18, 2007]). Claimant’s testimony regarding the value of the lost items is uncontradicted. He testified that he bought the gold neck chain and Star of David in 1985 for approximately $1,400 and that it was in excellent condition when it was lost. He requests only $290 in compensation for these items, which is based upon his determination of the value of gold as reported in the Wall Street Journal at the time he filed his claim. Having found that defendant is not liable for the loss of the gold chain, the Court will award damages only for the Star of David, which the Court values at $165. Claimant testified that he purchased the wedding band twenty-two years ago for $225, and that it was in good condition with no scratches. Accordingly, the Court values the wedding band at $200.

Claimant is therefore awarded damages in the amount of $365.00 (Three Hundred Sixty-Five Dollars and Zero Cents) with statutory interest from September 12, 2002 to March 12, 2003 and from August 11, 2003 to the date of this Decision, and thereafter to the date of entry of judgment. Any and all motions upon which the Court may have previously reserved decision or which were not previously determined are hereby denied. To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

The Chief Clerk of the Court is directed to enter judgment accordingly.

May 8, 2008
Albany, New York

Judge of the Court of Claims

[1]. One of the two exhibits received in evidence was the filed claim and its appended documents, 52 pages in toto (Claimant’s Exhibit 1).
[2].All quotations are to the Court’s trial notes or the digital audio recording of the trial, unless otherwise indicated. Inmates who are housed in special housing units (SHUs) at Upstate CF may possess only limited types of property in their cells such as books, legal papers and clothing.
[3]. The “IRC” is the Inmate Records Coordinator.
[4]. The Court notes that the jewelry permit that was issued to claimant upon his arrival at Upstate CF referred to the chain and the Star of David as a single item. Although claimant describes them as two items in this judicial proceeding, defendant has offered no evidence or argument that references in the exhibits to “chain” include claimant’s Star of David.