New York State Court of Claims

New York State Court of Claims

COLTRAIN v. THE STATE OF NEW YORK, #2008-044-004, Claim No. 110355


Inmate claimant’s mostly credible and uncontroverted testimony, facility permits, and receipts, as well as poor recordkeeping by DOCS personnel, established that property valued at $267.50 was lost while in defendant’s exclusive possession and control

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:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 11, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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, 2004.

On the institutional claim form filed at Southport on September 2, 2004, claimant alleges that at that point he was missing the following:
1) Typewriter $300.00
2) Super Radio (GE Radio) $ 32.00
3) Eyeglasses $ 15.00
4) 3 Sweatshirts $ 48.00
5) 1 pair sneakers $ 50.00
6) 4 towels $ 24.00
7) Food - canned goods $ 35.00

Total $504.00[1]

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 I-64 form[2] 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 [1878]). Defendant has an obligation to secure an inmate's personal property (Pollard v State of New York, 173 AD2d 906 [1991]). 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 [1977]).

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 [1977]). “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, 155 AD2d 866 [1989]). 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,[3] 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 [1973]), 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 receipt,[4] 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.

January 11, 2008
Binghamton, New York

Judge of the Court of Claims

[1]. These values were taken from claimant's institutional claim form, although the total value of the missing items was listed on that form as $474.00.
[2]. While claimant was pursuing this claim, he made a request to the Department of Correctional Services (DOCS) pursuant to the Freedom of Information Law for this I-64 form. Interestingly, DOCS advised him that the form did not exist. Claimant later found his copy of the form, and submitted it into evidence at trial, with no objection from defendant.
[3]. On August 15, 2004, claimant was denied a visit to the optometrist because he had been “[l]ast seen 1/04.”
[4]. Claimant testified that he asked DOCS for a copy of the receipt, but again was told it did not exist.