New York State Court of Claims

New York State Court of Claims

CRANDALL v. THE STATE OF NEW YORK, #2008-038-118, Claim No. 108866


Judgment for claimant in inmate bailment claim. Claimant provided unrebutted testimony that personal property was placed into possession of DOCS and not returned to claimant. Award of damages limited to those items for which claimant offered evidence of fair market value.

Case Information

1 1.The caption has been amended sua sponte to identify the State of New York as the proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to identify the State of New York as the proper defendant.
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 C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 10, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 these items.[2]

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 $1.40.

(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 $1.80.

(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.

November 10, 2008
Albany, New York

Judge of the Court of Claims

[2].On cross-examination of claimant, defense counsel elicited evidence that claimant was permitted to access his property bin on September 4, 2003, but that he did not complain of missing items until ten days later. Evidence was adduced at trial that claimant had previously been disciplined for the offense of “fishing” – i.e. unauthorized trading of personal property. Further, defendant proffered Exhibit A, received into evidence, a memorandum written by Upstate CF staff in response to claimant’s complaint that his property was missing which speculated that claimant may have “fished” the missing items away. In the absence of evidence that claimant actually accessed his property prior to September 14, 2003, and lacking further evidence that would substantiate the speculative conclusion that claimant “fished” the missing items, the Court declines to draw the inference that claimant traded away the items for which he seeks compensation in this claim.