New York State Court of Claims

New York State Court of Claims

AMAKER v. THE STATE OF NEW YORK, #2009-040-063, Claim No. 107678


Prisoner – Bailment established – Award $153.26.

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:
Attorney General of the State of New YorkBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
July 21, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


In this timely filed Claim, pro se Claimant, Anthony D. Amaker, has established by a preponderance of the credible evidence that the Defendant was negligent in losing certain items of his personal property when he was incarcerated at Upstate Correctional Facility (Upstate) in Malone, New York. The trial of this Claim was held by video conference on May 28, 2009, with the parties at Clinton Correctional Facility in Dannemora, New York and the Judge at the Court of Claims in Saratoga Springs, New York.

At the beginning of the trial, Claimant submitted into evidence, upon stipulation, as Exhibit 1, a copy of his Claim with documentation attached. He also submitted into evidence six other documents that were received without objection from the Defendant. Claimant, who was the only witness, testified that he was transferred to Upstate on October 31, 2001 and was incarcerated there through February 3, 2003. He stated that he arrived at Upstate with seven bags of property that were put into storage and he did not see his property again until April 13, 2002. At that time, he was allowed to retrieve some legal material but noticed that many of his personal items were missing. Mr. Amaker asserted that he was assaulted by staff on September 5, 2002 and that items were removed from his cell on that date. A list of those items is attached to his Claim (Ex. 1) as Exhibit A. The witness further testified that on October 2, 2002 he received access to his property bin, which was being kept on his “unit”, and several items of his personal property were missing as a result of the State’s negligence. A list of those items is attached to his Claim (Ex. 1) as Exhibit B.

Claimant further testified that he was “packed up” to go to Federal Court on November 16, 2002, and that Correction Officer (CO) Martin violated Department of Correctional Services (DOCS) regulations – Title 7 NYCRR §§ 1700.2(a)(2) and 1700.7(b) (see Ex. 2) by not filling out a Personal Property Transferred form, which is referred to as an I-64 form. He also stated that he was transferred from Upstate to Great Meadow Correctional Facility (Great Meadow) located in Comstock, New York on February 3, 2003. He received his property at Great Meadow on February 4, 2003 and more items of his property were missing. A list of those items is attached to his Claim (Ex. 1) as Exhibit C.

“To establish a prima facie case of negligence in a bailment transaction, [C]laimant must demonstrate that his property was deposited with [D]efendant and [D]efendant failed to return it ... Once claimant meets his burden, there is a rebuttable presumption that [D]efendant is negligently responsible for the loss, and [D]efendant must come forward with proof explaining the loss” (Rivera v State of New York, Ct Cl, Claim No. 109605, January 10, 2008, Milano, J. [UID No. 2008-041-501], quoting Amaker v State of New York, Ct Cl, Claim No. 105928, August 14, 2006, Hard, J. [UID #2006-032-511]; see Claflin v Meyer, 75 NY 260, 262 [1878]; Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]; Singer Co. v Stott & Davis Motor Express, 79 AD2d 227, 231 [4th Dept 1981]; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]). “With respect to value, Claimant must satisfy the court of the fair market value of the items in question . . . Receipts are the best evidence of fair market value [less depreciation], although uncontradicted testimony concerning replacement value may also be acceptable (Kilpatrick v State of New York, Ct Cl, Claim No. 110599, January 22, 2008, Scuccimarra, J. [UID No. 2008-030-001]; see Phillips v Catania, 155 AD2d 866 [4th Dept 1989]; Alston v State of New York, 9 Misc 3d 1126[A] [Ct Cl 2005]; Schaffner v Pierce, 75 Misc 2d 21 [Nassau Co. Dist. Ct. 1973]).

Based upon the documentary evidence submitted (Exs. 1, 3, 4, 5 and 6), together with Claimant's credible, plausible, and uncontradicted trial testimony, the Court finds and concludes that Claimant has established, by a preponderance of the credible evidence, that he possessed numerous items that were under the care and control of Defendant. The State's refusal or inability to return the bailed items on demand creates a presumption of negligence by Defendant, a presumption that the State has failed to rebut.

The Court finds these items to be: one pair of sneakers, 8 envelopes, 47 stamps, 3 personal photographs, religious materials, 8 magazines, 7 college books and 1 grammar book, Eastern Star book, soap, 2 shampoo, 3 deodorant, 2 baby powder, 2 Vaseline, 2 baby oil, olive oil, a bucket, an extension cord and a pair of glasses. Claimant’s testimony and the exhibits demonstrate his ownership of such materials and their loss. There appears to be no dispute that Claimant was forcibly removed from his cell on September 5, 2002 and a number of the lost items appear to relate to that event.

With respect to other items that Claimant asserts were lost, however, the Court finds either that he did not establish that he possessed the items, or he only described the items in general terms and did not provide specific information. In particular, the Court is unable to credit the valuations Claimant placed on items of sentimental or artistic value, such as his book manuscripts and the publication costs he alleges were incurred, photographs, a family address book, and lost legal papers. The Court finds and concludes that the value of some of the items which were in Claimant's possession at the time of their loss had depreciated due to their age and the fact that Claimant had used them (see Ex. 1). The Court determines the depreciated value to be as follows:
1 pair Nike sneakers $20.00
8 envelopes $ 0.48
47 stamps @ $0.37 each $17.39
3 personal photographs $ 3.00
Religious materials $30.00
8 magazines @ $2.00 each $16.00

7 college books @ $6.00 each $42.00
1 grammar book $ 1.00
Eastern Star book $ 1.50
Soap $ 0.54
Shampoo 2 @ $.69 each $ 1.38
Deodorant 3@ $1.10 each $ 3.30
Baby powder 2 @ $ .90 each $ 1.80
Vaseline 2 @ $.50 each $ 1.00
Baby oil 2 @ $ .90 each $ 1.80
Olive oil $ 3.05
Bucket $ 3.05
Extension cord $ 0.97
Pair of glasses $ 5.00
  1. $153.26

Accordingly, the Court finds and concludes that Claimant is entitled to judgment in the sum of $153.26, the depreciated value of the lost property as determined by the Court. This sum is to bear appropriate interest from February 4, 2003. To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).

The Chief Clerk is directed to enter judgment accordingly.

July 21, 2009
Albany, New York

Judge of the Court of Claims