New York State Court of Claims

New York State Court of Claims

AMAKER v. THE STATE OF NEW YORK, #2009-015-514, Claim No. 110623


Pro se inmate was awarded $209.27 for defendant's failure to safeguard his personal property.

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:
Anthony D. Amaker, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 27, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The trial of this claim occurred on November 19, 2008. The claim alleges, inter alia, the following:
"This claim is for the loss and damages of personal property deliberately destroyed by the State of New York, and gross negligence in the failure to manage subordinates in following of their own, rules, regulations and directives on the Temporary Storage of Inmate's personal property during taking immediate steps to protect claimant's property . . . " [sic].
According to the claim and claimant's testimony at trial, the claimant was assigned to the Great Meadow Correctional Facility's Special Housing Unit (SHU) on October 6, 2004. On that date the claimant alleges that his personal property was inventoried by correction officers. On November 4, 2004, the claimant and other inmates designated to be transferred from Great Meadow Correctional Facility were brought to the C-Block basement. At that time Correction Officer William Huffer, who claimant contends was one of the officers involved in issuing a misbehavior report against him, asked the claimant a question which the claimant ignored. At that time Correction Officer Huffer allegedly took a typewriter and threw it on the floor. The claimant testified that he was not aware at the time of this event that it was his typewriter that was thrown to the floor and that other correction officers picked the typewriter up and placed it in a bag for transport. Claimant received his property on November 7, 2004 upon his arrival at Southport Correctional Facility and immediately alerted officers that his typewriter was damaged. An I-64 Personal Property Transfer Form completed at Southport Correctional Facility denotes that the claimant's typewriter was "broken" at the time the form was completed. According to the claimant certain of his personal property was not received until November 22 and November 24, 2004. The claimant alleged that it was at this time he became aware that certain of his property had not been inventoried on the I-64 forms completed at Great Meadow Correctional Facility. The claimant submitted administrative claims for the damage to his typewriter and a pair of eyeglasses allegedly broken during his transfer as well as the miscellaneous property allegedly not inventoried at Great Meadow Correctional Facility. Those claims were denied. Receipts for certain of the items allegedly lost during transfer were received as Exhibit 2.

In addition to the above, the claim alleges the claimant discovered that eyeglasses contained in his property bags shipped from Great Meadow Correctional Facility were broken when he reviewed his property at Southport on November 7, 2004. At trial the claimant alleged that he was issued soft contact lenses, presumably at Great Meadow Correctional Facility, and informed officials at Southport Correctional Facility that he needed his contact lens prescription renewed.

At trial claimant described his eyeglasses as "old" but did not state specifically that they were broken during his transfer. Claimant contends that he was forced to reuse old contact lenses for one year until his eyeglass prescription was renewed by a Dr. Delaney in September, 2005. Claimant testified that he suffered pain, discomfort and a loss of vision due to the failure to renew his contact lens prescription.

On cross-examination claimant testified that he did not observe Correction Officer Huffer throw his typewriter, but rather only observed it as it landed on the floor. Claimant confirmed that his typewriter was broken when he viewed his property at Southport Correctional Facility and that he was unable to have the typewriter repaired until sometime during the Summer of 2008. The claimant was unable to produce a receipt for the repairs but indicated at trial that he was informed by his family that the item was repaired for approximately $120.00.

The defendant presented no direct case but moved to dismiss that portion of the claim seeking damages for injury to the claimant's vision as a matter requiring expert medical testimony which the claimant failed to present.

Preliminarily it should be noted that the claimant's pre-trial motion for a judicial subpoena to compel the attendance of a non-party inmate witness at trial was granted based, in large part, upon an affidavit from the inmate indicating that he witnessed Correction Officer Huffer throw the claimant's typewriter to the floor (see Amaker v State of New York, UID #2007-015-215, Claim No. 110623, Motion No. M-73249 [Ct Cl, July 16, 2007], Collins, J.). However, notwithstanding proper service of a judicial subpoena, the defendant failed to produce the inmate for trial. Inasmuch as the inmate witness was under the defendant's control and the defendant failed without explanation to produce him for trial, the Court will infer that his testimony would have supported the claimant's contention that Correction Officer Huffer threw the typewriter to the floor, breaking it (see Gagnon v St. Clare's Hosp., 58 AD3d 960 [2009]; People v Gonzalez, 68 NY2d 424 [1986]). The Court credits the testimony of the claimant that the cost to repair the typewriter was $120.00 and, accordingly, awards this amount for the damage to the typewriter.[1]

Claimant also established that some of his personal property was delivered to the possession of the defendant for transfer but not returned. The State as a bailee of an inmate's personal property owes a common-law duty to secure the property in its possession (Pollard v State of New York, 173 AD2d 906 [1991]; see also 7 NYCRR part 1700). A rebuttable presumption of negligence arises where it is established that the property was delivered to the defendant with the understanding that it would be returned, and that the defendant failed to return the property or returned it in a damaged condition (Ramirez v City of White Plains, 35 AD3d 698 [2006]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 [1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1977]; see also Claflin v Meyer, 75 NY 260 [1878]). Thereafter the burden of coming forward with evidence that the loss or destruction of the property was not its fault is upon the defendant (Feuer Hide & Skin Corp. v Kilmer, supra; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049 [1981]; Weinberg v D-M Rest. Corp., supra ).

Claimant established that he delivered his personal property to correction employees prior to his transfer to Southport and that certain items were not returned. Accordingly, the claimant met his initial burden relative to certain of the property recited in the claim. Defendant failed to overcome this prima facie showing with proof negating its responsibility for the loss of the property.

With respect to value, claimant must satisfy the Court of the fair market value of the items in question (Phillips v Catania, 155 AD2d 866 [1989]). Claimant has submitted receipts for most of the property which was not returned (Exhibit 2). Accordingly, claimant is awarded $ 89.27 for the remaining items of property which were delivered to the defendant but not returned. No award is made for the items of food for which the claimant has made a claim as no food items were indicated on the Personal Property Transferred forms. In addition, no award is made for the eyeglasses which the claimant asserts were broken as the claimant failed to establish that these glasses were broken during the course of his transfer to Southport.[2] No award is made for photographs as they have no fair market value upon which recovery in a bailment case may be based (West v State of New York, UID #2002-015-558, Claim No. 100642, [Ct Cl, August 12, 2002] Collins, J.)[3]

Finally, defendant's motion to dismiss that portion of the claim alleging loss or injury to the claimant's vision is granted on the grounds that such a claim must be supported by expert medical proof
Myers v State of New York
, 46 AD3d 1030 [2007]; Trottie v State of New York, 39 AD3d 1094 [2007]). No such proof was offered at trial.

The Court hereby awards total damages to the claimant of $209.27, with interest at the statutory rate from November 4, 2004 (CPLR 5001 [a], [b]) .

To the extent the claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

Judgment shall be entered by the Clerk in accordance with this decision.

February 27, 2009
Saratoga Springs, New York

Judge of the Court of Claims

[1].Claimant's Exhibit 2 includes a receipt for the typewriter, which was purchased in April, 2003.
[2].Any claim for pain and suffering as the result of the loss of use of these glasses must fail for this reason.
[3].Unreported decisions from the Court of Claims are available via the internet at