Kent Johnson alleges in his claim that defendant’s agents the New York
State Department of Correctional Services [DOCS] negligently or intentionally
lost his personal property upon his transfer from Sing Sing Correctional
Facility [Sing Sing] to Auburn Correctional Facility [Auburn] on or about
September 12, 2005. Trial of the matter was held at Sing Sing on December 16,
Mr. Johnson testified that he was packed up for transfer from Sing Sing on
September 7, 2005. Three (3) bags were packed in the presence of claimant, and
later tagged outside of his presence. One of the three (3) bags that arrived at
Auburn contained only “literally garbage . . . old used clothes, old twine
bags, but just garbage.”
As he opened
this bag in the presence of the officer, the officer remarked “I know this
is not your stuff . . . I’ll investigate.” The officer also wanted
to know if claimant had “pissed somebody off.” The officer told him
to file a grievance and a personal property claim and that a sergeant would be
interviewing claimant. After the sergeant interviewed claimant, he, too, told
Mr. Johnson to file a claim.
The grievance and the facility claim were both denied. In the rejection of the
facility claim, Mr. Johnson was advised that he needed to provide proof of value
and age through a “purchase invoice,” would need to show that the
legal matter was “active” as well as the cost of replacing the legal
work. [Exhibit 1]. Were these provided, the hearing officer would
“consider” his claim. [See ibid.]. To that end, claimant said
he “put in FOIL requests for his package room receipts, and for his
commissary receipts, but [he] was unable to obtain” same. A copy of an
acknowledgment of a FOIL request from Auburn, which is dated April 25, 2006,
indicates: “We have received your F.O.I.L. Request. Due to the volume of
incoming requests and their relative levels of complication, your request may
take a minimum of twenty days to complete.” [Exhibit 2]. No other
documents concerning any FOIL requests were submitted.
Claimant testified that he “lost some stamps, two pairs of sneakers, ten
packs of cigarettes, a belt, some shower slippers, some photos and all of . . .
[his] legal work.” The original receipts “were lost with the legal
In addition to the value of the property lost, the claim filed in this court
seeks “ five thousand dollars in punitive damages” he said, because
of the loss of irreplaceable items such as photographs of his mother and
A significant portion of his claimed loss was for the legal work regarding
appeal of his criminal conviction. He pointed out that he received two letters
from the investigating sergeants, each saying that he was indeed missing
property and that they were investigating. [See Exhibit 2]. One writer
acknowledged that the bags “were tagged wrong” meaning that another
inmate likely received claimant’s property. [See ibid.].
Mr. Johnson said “they never investigated.”
Claimant had attached to his facility claim a copy of the I-64 completed at
Sing Sing, and notes further explaining how he arrived at the values stated
therein since all the receipts were in the lost bag with his legal work.
[Exhibit 1]. He also described at the trial before this court his efforts to
obtain information as to proof of ownership and as to value. With regard to the
legal work, having been told by the hearing officer that he needed to prove the
cost of replacing the transcripts, Mr. Johnson apparently wrote to the Albany
County Clerk’s Office, at some unspecified time, to obtain the dates of
his court appearances. [Exhibit 3]. On November 22, 2005 the clerk’s
office provided him with a computer transcript of appearances and hearing dates
and the name of the court reporter who had transcribed such appearances.
[Ibid.]. On October 21, 2007 (after the present claim was filed in this
court) Mr. Johnson wrote to the clerk’s office asking for transcripts of
each proceeding and the cost for reproducing same. [Ibid.]. Assuming the
correspondence is responsive to claimant’s October 21, 2007 letter, the
clerk’s office wrote back on October 25, 2007 indicating that he would
need to contact his attorney for the information requested. [Ibid.]. No
documentation of efforts made between November 2005 when the clerk’s
office first provided him with the hearing dates, and October 2007 was
submitted, including any indication of what the cost for transcription might be.
On cross-examination, claimant confirmed that his facility claim was rejected
because he had no receipts, but that he was told to provide them and the matter
would be considered. He averred that “nobody sent anything back from
FOIL”, and that his appeal had been an ineffective assistance of counsel
claim, so he could not utilize his attorney to get documents. A largely
illegible photocopy of an I-64 form completed at Sing Sing was included in
motion papers filed in this court [see M-73632], and documents the
existence of most of the items claimed at the time he was packed up at Sing
Sing. In his trial testimony, he said that the values he “put in the
inmate claim was less than their actual value” because he did not have
receipts to utilize. For example, the sneakers “were actually more than
[the] $50.00” each he claimed, and were unworn gifts from his birthday.
The “leather belt was more than $15.00, actually $25.00, but because [he]
wore the belt” he reduced the amount claimed. The shower shoes listed in
the claim were used, that is why they were reduced to $7.50 in value. All the
values claimed “were less” than the “actual
The “stenographer had said [that the cost of transcription] would be
$2.00 and change per page.” He claimed $192.50 in transcription costs for
approximately 200 pages of transcripts. The cost for photocopying 250 pages of
legal materials - “my research” - was based on the cost of copying
from the law library, at $ .10 per page. He asks for “$5.00 each”
for personal photographs; $9.25 for twenty-five (25) stamps; $43.30 for ten (10)
packs of cigarettes he asserted were “not smoked;” and compensation
for “the 75 typewritten pages” he himself had typed in pursuing his
No other witnesses testified and no other evidence was submitted.
This claim is in the nature of a bailment created between defendant and
claimant by delivery of claimant’s personal property into the custody of
defendant’s employees, and its loss at their hands. See generally,
Claflin v Meyer, 75 NY 260 (1878). The State has a duty to secure an
inmate’s personal property. Pollard v State of New York, 173 AD2d
906 (3d Dept 1991). A delivery of property to the bailee, and the
latter’s failure to return it, satisfies claimant’s burden of
establishing a prima facie case of negligence. The bailee is then
required to come forward with evidence to “overcome the
presumption.” Weinberg v D-M Rest. Corp., 60 AD2d 550 (1st Dept
1977). “Where a bailment is created, a showing that the [property was]
delivered to the bailee and returned in a damaged condition establishes a
prima facie case of negligence and the burden shifts to the bailee to
demonstrate that it exercised ordinary care . . . (citation
omitted)” Board of Educ. of Ellenville Cent. School v Herb’s
Dodge Sales & Serv., 79 AD2d 1049,1050 (3d Dept 1981).
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 (4th Dept
1989); Schaffner v Pierce, 75 Misc 2d 21 (Nassau Co Dist Ct 1973).
Receipts are the best evidence of fair market value, although uncontradicted
testimony concerning replacement value may also be acceptable. Personally
meaningful items, such as photographs, have no fair market value [see
Benton v State of New York, Claim No. 94337 (Collins, J., July 8,
1999)], although the “intrinsic value” may be awarded if the loss is
credited. See Morillo v State of New York, UID # 2008-013-511,
Claim No. 107193 (Patti, J., October 29, 2008).
A large part of the resolution of this claim rests upon the credibility of the
only witness, and the weight of the evidence claimant presented to substantiate
his claim. Resolving issues of credibility is the province of this Court as the
trier of fact. LeGrand v State of New York, 195 AD2d 784, 785 (3d Dept.
1993), lv denied 82 NY2d 663 (1993).
Upon review of all the evidence, including listening to claimant testify, and
observing his demeanor as he did so, the court finds that claimant has
established the elements of his bailment claim, at least in part. For the most
part he was credible, if a bit prone to exaggeration when pressed about the
values listed, and the lack of response to his efforts to gather information.
There are gaps in the documents that have been provided suggesting that his
efforts to obtain supportive documentation were sporadic, even initially when
the hearing officer assessing the facility claim gave suggestions as to what
would be helpful to establish entitlement to relief. [See Exhibit 1].
Nonetheless, based upon the credible evidence presented, including documents
acknowledging that the State lost or misdelivered his property [see
Exhibit 2], there has been no rebuttal of the presumption of negligence that
arose when claimant arrived at Auburn and demanded return of his property.
See Mathis v State of New York, UID # 2005-009-147, Claim No.
102059 (Midey, J., December 8, 2005). Exactly what property was delivered and
what its value was is unclear, however, but for those non-fungible items listed
on the I-64 completed by DOCS personnel at Sing Sing.
Notably, punitive damages are not available against the State of New
York, and claimant’s request for same is denied. Sharapata v Town of
Islip, 56 NY2d 332, 339 (1982); see also Harvey v State of New
York, 281 AD2d 846, 849 (3d Dept 2001). Additionally, as a general rule,
legal work has no value [see 7 NYCRR 1700.8 (a)(4)], and the court
declines to award any damages for claimant’s lost legal papers on this
The court finds that claimant has established the requisite elements of a
bailment with respect to two (2) pairs of sneakers; one (1) belt; twenty-five
(25) stamps; ten (10) packs of cigarettes; and sixty (60) personal photographs,
all listed on the I-64 form prepared by the defendant’s agents, but not
the remaining items. With regard to the balance of the recovery sought, claimant
did not establish all the required elements of a bailment, including possession,
delivery, failure to return and/or value. Items were either not shown as in his
initial possession, thus not satisfying the element of ownership, or no value
was satisfactorily established through testimony or receipts. Testimony offered
was simply not specific enough, some of the remaining items were not listed on
the I-64 inventory form, or, if listed, the quantity is illegible.
Additionally, only approximations of the cost of transcripts were offered
although the calculation of cost based upon information supplied by the trial
court has been available for over three years. [see Exhibit 3].
Finally, beyond sentimental value, claimant did not give any direct proof as to
the value of the personal photographs although he avowed they were “worth
$5.00 each.” Other courts have assigned an intrinsic value to such items
as noted, and/or limited recovery to the cost of development. See
Morillo v State of New York, supra (398 photographs valued at
$40.00); Mathis v State of New York, supra (8 photographs valued
at $40.00). Here, the court finds the value to be $30.00 based upon such
Based on the foregoing, claimant has established that the fair market value of
the items lost is in the amount of $197.55, and claimant is hereby awarded
damages in the amount of $197.55 plus statutory interest [§16 State
Finance Law; § 5004 Civil Practice Law and Rules], which the Court finds
presumptively reasonable, from September 12, 2005 to the date of this Decision,
and thereafter to the date of the entry of judgment pursuant to §§
5001 and 5002 Civil Practice Law and Rules.
It is ordered that to the extent Claimant has paid a filing fee, it may be
recovered pursuant to Court of Claims Act § 11-a(2).
Let Judgment be entered accordingly.