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
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
#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.
, 58 AD3d 960 ; People v Gonzalez
, 68 NY2d 424
). 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.
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
; 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 ; Feuer Hide &
Skin Corp. v Kilmer, 81 AD2d 948 ; Weinberg v D-M Rest. Corp.,
60 AD2d 550 ; see also Claflin v Meyer, 75 NY 260 ).
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
; 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
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 ).
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.
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
#2002-015-558, Claim No. 100642, [Ct Cl, August 12, 2002] Collins,
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 ; Trottie v State of New York, 39 AD3d 1094 ).
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.