New York State Court of Claims

New York State Court of Claims

JOHNSON v. STATE OF NEW YORK, #2009-030-002, Claim No. 113605


Bailment claim established after trial. Documentary proof and credible testimony established that State admitted to misdelivery of property. No rebuttal of presumption of negligence. Intrinsic value of photographs, personal clothing, stamps, etc., but not cost of transcripts, awarded.

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:
Third-party defendant’s attorney:

Signature date:
January 15, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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, 2008.

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.”[1] 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 work.”

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 daughter.

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 amounts.”

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 appeal.

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 record.

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 intrinsic value.

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.

January 15, 2009
White Plains, New York

Judge of the Court of Claims

[1]. All quotations are to audio recordings unless otherwise indicated.