New York State Court of Claims

New York State Court of Claims

LA MOUNTAIN v. THE STATE OF NEW YORK, #2009-015-518, Claim No. 111563


Pro se inmate was awarded damages following a trial on his bailment claim

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:
Ronald La Mountain, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Steven J. Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 8, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The trial of this pro se inmate claim took place on April 30, 2009. Claimant alleges in his amended claim that on April 12, 2005 individuals from the Albany County Sheriff's Department and the Inspector General's Office entered his cell in the honor block housing unit at Great Meadow Correctional Facility, confiscated certain property, and failed to return photographs, his General Equivalency Diploma (GED), high school transcript, and Paralegal/Legal Assistant Certificate and grade transcripts.

Claimant testified that on April 12, 2005 individuals from the Albany County Sheriff's Department and the Inspector General's Office searched his cell and seized his property while he was participating in a work program. Claimant testified that he was not provided a contraband receipt and that the Albany County Sheriff's Office turned his property over to the Albany County District Attorney's office. Claimant's Exhibits 1 through 12 were received in evidence. Exhibit 6 is a photocopy of a receipt for evidence confiscated from claimant's cell. To the extent this receipt is legible, it reflects the following items: 1 blue photo album, 1 drawing, 2 cards and 18 loose photographs. There is one additional item indicated on this receipt which is not legible. Exhibit 9 is a copy of the claimant's letter to the commissary supervisor requesting an estimate for the replacement cost of photographs and Exhibit 10 is his response indicating that the "price per photo ticket is $1.50." [1]

The claimant called Correction Officer Leslie E. Perry to the stand. Officer Perry testified that he has been the Inmate Claims Officer at Great Meadow Correctional Facility since 2005. Officer Perry identified an Interdepartmental Communication he prepared on August 11, 2005 (Exhibit A) listing the items which were returned to the claimant from the Inspector General's Office. This communication is signed by the claimant and reflects the return of the following items: 17 loose photographs, 1 calendar, 1 small drawing, 2 greeting cards, 1 photo album with approximately 60 loose photographs missing.

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 ).

A comparison of Exhibit 6, listing the items taken from the claimant's cell, with Exhibit A, listing the items returned to the claimant, indicates that only 60 loose photographs were confiscated and not returned to the claimant. The Court also credits the claimant's testimony that his photo album was returned in a damaged condition. The Court does not, however, credit the claimant's testimony that Exhibit 6 does not reflect all of the personal property taken from his cell. No proof was presented that the claimant's GED diploma or school transcripts and certificates were taken. Accordingly, no award is made for the replacement cost of these items.

The Court finds the uncontradicted proof of the replacement cost of the photographs fair and reasonable and awards the claimant $90 for the cost of replacing the missing photographs. The Court also awards the claimant $3 claimed for the damage to his photo album.

Based on the foregoing, the Court hereby awards total damages to the claimant of $93.00 plus interest at the statutory rate from August 11, 2005 (CPLR 5001 [a] and [b]).

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

Let judgment be entered accordingly.

July 8, 2009
Saratoga Springs, New York

Judge of the Court of Claims

[1]. Other Exhibits received in evidence include Directive 4910 entitled Control of and Search for Contraband (Exhibit 1); Contraband Receipt form (Exhibit 2); Search Contraband Report form (Exhibit 3); Interdepartmental Communication from R.W. Potter, Acting Superintendent, indicating that due to an ongoing investigation the items confiscated from the claimant's cell are being retained as evidence and that a receipt was issued for those items (Exhibit 4); photocopy of logbook entries for April 12, 2005 (Exhibit 5); responses to request under the Freedom of Information Law dated September 19, 2005 and August 26, 2005 (Exhibits 7 and 8 respectively); receipt from Blackstone Career Institute for money orders received through May 23, 2003 totaling $825 (Exhibit 11); list of course books for Blackstone Paralegal Studies totaling $440, together with customer's receipts for money orders from the United States Postal Service (Exhibit 12).