Claimant, an inmate in a State correctional facility, filed this claim seeking
damages for personal property that was allegedly lost when claimant was moved
between cell blocks at Upstate Correctional Facility (CF) in July 2003. The
trial of this claim was conducted by videoconference on August 19, 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 22 documents
into evidence, all of which were received in evidence. 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 of
negligent bailment, 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], *2-*3). 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, at *3; Jackson v State of New
York, UID # 2007-044-010, Claim No. 109373, Schaewe, J. [Mar. 22, 2007]).
The instant claim seeks compensation in the amount of $442.00 for the loss of
numerous personal items, including books, magazines, clothing, footwear,
toiletries and photographs. Claimant’s credible testimony and documentary
evidence demonstrated the following. Claimant was incarcerated at Upstate CF on
July 16, 2003 when he was given a Tier II misbehavior ticket, and consequently
transferred to another cell in B block. Prior to being transferred,
claimant’s personal property was taken by two correction officers and
packed into a personal property bin for safekeeping, as he was not permitted to
bring personal items to his new cell. There was no evidence adduced at trial as
to whether the items that were packed in the personal property bin were
inventoried by Upstate CF officials. When claimant was able to access his
personal property bin, he discovered that the following items were missing: (1)
ten adult magazines; (2) four copies of National Geographic
; (3) one pair
of shorts; (4) one pair of sneakers; (5) twenty bars of soap; (6) two tubes of
toothpaste; (7) two roll-on sticks of deodorant; (8) five copies of Islamic
books, including two copies of the Qu’ran; (9) a copy of Source
magazine; (10) a Bible and Bible Dictionary; (11) one pair of shower slippers;
(12) a French dictionary; (13) two legal books; and (14) 200 photographs.
Claimant has proven by a preponderance of the credible evidence that he
delivered to defendant the aforementioned enumerated items and that the items
were not returned to him. The Court finds that these items were lost while in
defendant’s control, and defendant has offered no credible evidence to
rebut claimant’s prima facie
showing of a negligent bailment of
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 uncontradicted
testimony regarding the value of the lost items is incomplete, as he is only
able to remember how much he paid for some of the items. Therefore, the Court
finds that claimant was able to prove by a preponderance of the credible
evidence the fair market value of the following items and values
claimant’s loss as follows:
(1) Ten new adult magazines, valued at $3.00 each, for at total of $30.00; the
Court assigns a depreciation of 10%, and values the loss at $27.00.
(2) One pair of shorts that were five years old, valued at $5.00; the Court
assigns a depreciation of 50%, and values the loss at $2.50.
(3) Twenty bars of unused soap, valued at 7 cents per bar, for a total of
$1.40; the Court assigns no depreciation to these items and values the loss at
(4) Two tubes of unused toothpaste at $1.25 per tube, for a total of $2.50; the
Court assigns no depreciation to these items and values the loss at $2.50.
(5) Two unused roll-on sticks of deodorant at 90 cents per stick, or a total of
$1.80; the Court assigns no depreciation to these items and values the loss at
(6) One pair of shower slippers that were two months old at $3.00; the Court
assigns a depreciation of 20%, and values the loss at $2.40.
The photographs of claimant’s family members may have sentimental value,
but have no fair market value upon which a recovery can be made in a bailment
claim (see Smith v State of New York,UID # 2005-030-014, Claim No.
107768, Scuccimarra, J. [June 1, 2005]; West v State of New York, UID #
2002-015-558, Claim No. 100642, Collins, J. [Aug. 12, 2002]). As claimant did
not present sufficient evidence of the value of the remaining lost items, no
award of damages can be made for their loss.
Claimant is therefore awarded damages in the amount of $37.60 (Thirty-Seven
Dollars and Sixty Cents) with statutory interest from September 14, 2003. 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.