Claimant, an inmate appearing pro se, alleges that defendant State of New York
(defendant) negligently lost certain personal property belonging to him when he
was transferred from the general population area at Elmira Correctional Facility
(Elmira) to the Special Housing Unit (SHU) on June 28, 2004. A trial in this
matter was conducted by video conference on November 28, 2007, with the parties
appearing at Elmira, and the Court sitting in Binghamton, New York.
At trial, claimant testified that he was sent to SHU at Elmira on June 28, 2004
after violating a facility rule. His property remained in his cell at the time
of his transfer, and was transferred to SHU the next day. Claimant said that
when he received his property in SHU, he noticed that he was missing some items,
and he informed a correction officer of this. Claimant was transferred to
Upstate Correctional Facility (Upstate) on July 26, 2004, and thereafter he was
transferred to Southport Correctional Facility (Southport) on August 18,
On the institutional claim form filed at Southport on September 2, 2004,
claimant alleges that at that point he was missing the following:
7) Food - canned goods $ 35.00
On the I-64 form detailing the property transferred to SHU from claimant's cell
at Elmira, claimant noted that he was signing “Under Protest.” That
makes no reference to a typewriter
or eyeglasses, but does list a radio and numerous clothing and food items.
The claim also contains an I-64 form for property received at Upstate, and
notes that the property was shipped via Downstate Correctional Facility.
Notably, that form lists a pair of eyeglasses and case. Interestingly, the
boxes on the form next to TYPWTR and INSTRU were initially marked with an
“X” and then crossed out. No radio, sweatshirts, sneakers, towels
or food items are listed on that form. The form notes that claimant was not
present when the items were packed, and claimant again notes that he was signing
“Under Protest” when he received the items. Some items were
apparently immediately repacked for SHU storage.
Another I-64 form submitted by claimant was for property packed on July 31,
2004 at Upstate. That form lists one towel and two cans of food. The third
I-64 form, also for property packed at Upstate on August 3, 2004, is for one bag
which contained one sweatpant and two sweatshirts, along with one Etron radio.
An I-64 form for property packed on August 17, 2004, and stamped “SHU in
Cell,” notes the presence of an eyeglass case, but no eyeglasses. That
I-64 indicates that claimant was transferred to Southport.
An I-64 dated August 21, 2004 indicates that three bags were packed at
Southport, but does not contain any of the allegedly missing items, except one
towel. An I-64 dated September 4, 2004 for property packed at Southport lists
the Etron radio and three sweatshirts and three sweatpants. Claimant also
submitted proof of ownership forms for the GE Radio from Clinton Correctional
Facility dated August 19, 2003, the Etron Radio from Elmira dated August 26,
2003, and a Smith Corona Typewriter from Elmira dated March 17, 2004.
Claimant's institutional claim was filed at Southport and denied on October 8,
2004, stating that no typewriter was present when claimant's property was packed
at Elmira, and that claimant stated that the radio listed on the I-64 form was
not his. It was also noted that the sweatshirts were received on September 4,
2004, and that because proof of purchase was not presented for the remaining
items claimed missing, they were fully depreciated. Claimant's appeal of this
determination was also disapproved.
Claimant rested his case at the close of his testimony. Defendant called no
witnesses and conducted no cross-examination of claimant.
A bailment is created when personal property is delivered into the hands of
another, who is then expected to return it in the same condition on demand
(Claflin v Meyer, 75 NY 260, 262 ). Defendant has an obligation to
secure an inmate's personal property (Pollard v State of New York, 173
AD2d 906 ). Once a claimant meets the burden of proving that his property
was deposited with the defendant and that the latter failed to return it, the
burden shifts to the defendant to overcome the presumption of its negligence
(Weinberg v D-M Rest. Corp., 60 AD2d 550 ).
Even when there is no formal transfer of property, a bailment is still implied
when one comes into lawful possession of the property of another (Mack v
Davidson, 55 AD2d 1027 ). “The determination as to whether the
relationship is one of bailor and bailee turns on whether there is a
relinquishment of exclusive possession, control and dominion over the
property” (Alston v State of New York, Ct Cl, Aug. 19, 2005,
Schweitzer, J., Claim No. 108146 [UID # 2005-036-500]).
When claimant was taken from general population to SHU, leaving his property
behind, he clearly relinquished to defendant exclusive possession, control, and
dominion over his property. The missing property situation was clearly
exacerbated by the repeated moves of claimant and his possessions by DOCS, as
well as the poor - if not negligent - recordkeeping by DOCS personnel concerning
claimant's property throughout that process.
Claimant has demonstrated, through his mostly credible and uncontroverted
testimony, the facility permits, and his receipts, that he was originally in
possession of the typewriter, GE Radio, eyeglasses, towels and food items, and
moreover that these items of his personal property did not follow him in his
property bags when he was transferred to SHU and thence to other facilities.
However, the I-64 form dated September 4, 2004 indicates that he received the
sweatshirts in a final shipment of his property, and the Court therefore
declines to award damages for the sweatshirts.
The measure of recovery when bailed property is not produced upon demand is the
fair market value of the property, that is, the value of the original purchase
price less a reasonable rate of depreciation (Phillips v Catania
AD2d 866 ). Receipts, which are the best evidence of fair market value,
established that the GE Radio and sneakers were less than one year old when
claimant was transferred to SHU. While claimant did not have a receipt for
purchase of the lost eyeglasses, documentation indicated that they were less
than one year old,
and claimant did have a
receipt for the glasses he purchased in replacement. Accordingly, the Court
will not apply depreciation in its consideration of claimant's damages regarding
the GE Radio, sneakers and eyeglasses (see Schaffner v Pierce,
75 Misc 2d
21 ), and awards $152.50 for those items.
Claimant had no receipts for the towels, and on his institutional claim form
indicated that they were approximately one year old. Depreciation will
accordingly be applied, and the Court awards $5 for those items. With regard to
the food items, claimant did not have a
but did testify that he had been to
the commissary to purchase those items immediately before he was transferred to
SHU. Claimant testified that he estimated the value of those items at $35, and
the Court accordingly awards that amount.
Finally, claimant indicated a value of $300 for the typewriter on his
institutional claim form. However, the facility permit clearly indicates that
the maximum value allocable to typewriters is $200. Claimant's testimony that
the item was worth $300 was not credible, and consequently the Court awards $75
in damages for the typewriter.
Claimant is hereby awarded damages in the amount of $267.50, plus the
appropriate statutory interest from June 29, 2004. Any and all motions on which
the court may have previously reserved or which were not previously determined,
are hereby denied.
Finally, to the extent that claimant has paid a filing fee, it may be recovered
pursuant to Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.