New York State Court of Claims

New York State Court of Claims

KOEHL v. THE STATE OF NEW YORK, #2009-041-018, Claim No. 116151, Motion No. M-76508


Claimant’s motion for summary judgment on damaged property/bailment claim is granted where defendant failed to rebut presumption of negligence arising from bailment; claimant is awarded $80.00 for loss of typewriter.

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:
New York State Attorney GeneralBy: Paul F. Cagino, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 29, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for summary judgment in this action which seeks recovery for alleged damage to claimant’s personal property while the property was in defendant’s possession. On October 9, 2008, claimant’s personal property was inventoried and transported by defendant’s employees as part of claimant’s transfer from Clinton Correctional Facility to Downstate Correctional Facility and ultimately to Green Haven Correctional Facility (Green Haven). Among the items of personal property transported by defendant was claimant’s typewriter. Claimant states in his claim and supporting affidavit that his typewriter was in perfect condition at the time it was packed for claimant’s transfer.

Claimant states that, on the evening of October 10, 2008, he “witnessed” his personal property being thrown “off the back of the van” by defendant’s “transportation officers” upon arrival at Green Haven.

On October 11, 2008, claimant was summoned to the Green Haven property room and his personal property was unpacked and inventoried, in claimant’s presence, by a Green Haven correction officer. Claimant states that he saw that the “metal shaft (knob) attached to the roller” of his typewriter was broken off and further states that he immediately advised the correction officer of the damage. Claimant also says that he informed the Green Haven Superintendent of the damaged property and filed an Inmate Claim Form seeking compensation in the amount of $100.00 (the alleged cost of a new roller) for the damage to his typewriter.

The claim was initially denied by defendant because claimant allegedly did not prove ownership of the typewriter, did not show “DOCS neglect.” Defendant also asserted that claimant contributed to the damage and that the claim “did not show the proper amount to be paid.” After claimant’s administrative appeal, the defendant again denied the claim because claimant allegedly misstated the age of the typewriter.

Having exhausted his administrative remedy, claimant thereafter commenced this action in compliance with the requirements of §§ 10 and 11 of the Court of Claims Act.

The claim sounds in bailment: “To establish a prima facie case of negligence in a bailment transaction, claimant must demonstrate that his property was deposited with the defendant and the defendant failed to return it . . . Once claimant meets his burden, there is a rebuttable presumption that the defendant is negligently responsible for the loss, and defendant must come forward with proof explaining the loss” Amaker v State of New York (Ct Cl August 14, 2006, UID #2006-032-511, Hard, J.)[1]; see Claflin v Meyer, 75 NY 260 [1878]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]; Miceli v State of New York, 179 Misc 2d 424, 428-429 [Ct Cl 1998]).

These principles are embodied in Department of Correctional Services regulations at 7 NYCRR 1700.7 (b), which provides at relevant part as follows:
“Property last in control of the department. When an inmate's property was last in the control of the department or its agents, and the department fails without good explanation to deliver it in to the inmate or the inmate's designee in the same condition as when received by the department, then there is a rebuttable presumption that the department is negligently responsible for the loss.

(1) To rebut the presumption of negligence, the reviewer must determine that all department staff who had a duty to protect the inmate's property carried out their duties in an acceptable way. If that is not shown or if it is shown that the department's staff failed to meet their responsibilities, then the department will be deemed to have been negligent.”
“A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment” (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; see Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).

Claimant has satisfied his initial burden by demonstrating through sworn statements that the typewriter was delivered to defendant free from defects and returned to claimant in a damaged condition.

“In opposition to a motion for summary judgment a party must assemble and lay bare affirmative proof to establish that genuine material issues of fact exist. Only the existence of a bona fide issue raised by evidentiary fact rather than one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment where the movant has made out a prima facie basis for the granting of the motion” (Archambault v Martinez, 120 AD2d 632, 632-633 [2d Dept 1986]). Further, “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In opposition to the claimant’s proof, defendant offers the affirmation of its attorney. An attorney’s affidavit is generally insufficient to raise a triable issue of fact because “[a]n attorney’s affidavit not based upon personal knowledge is without value” (Romel v Reale, 155 AD2d 747 [3d Dept 1989]).

Defendant’s attorney suggests that claimant is responsible for the damage to the typewriter because claimant allegedly chose to pack the typewriter with the rest of his personal property rather than in a “proper . . . typewriter case or securely packed in a box so as to prevent damage.” Defendant’s attorney implies that claimant thus violated Department of Correctional Services (DOCS) Directive 4917. The Directive states, however, that a typewriter “must” be packed in the way described and a review of the balance of the Directive indicates that it is the DOCS employee, rather than the inmate, who would be responsible for complying with the requirement. Claimant swears that he complied with the orders of the correction officer in packing his typewriter and defendant offers no sworn proof to dispute claimant.

Similarly, defendant, in pointing out that the I-64 Personal Property Transferred Form does not reflect any damage to the typewriter upon inventory of claimant’s belongings at Green Haven, offers no sworn proof to dispute claimant’s assertion that he reported the damage immediately to the correction officer conducting the inventory, the facility superintendent and through an inmate claim form.

Defendant’s unsupported speculation that the damage could have been through normal wear and tear is unpersuasive.

Claimant is granted summary judgment as to defendant’s liability for the damage to the “metal shaft (knob) attached to the roller” of his typewriter.

The claim seeks damages of $100.00 which allegedly represents the cost of repairing the typewriter. There is no admissible proof set forth in claimant’s motion papers to substantiate this amount. The defendant has attached a receipt for a typewriter sold and delivered to claimant in January 2004 which reflects a cost of $165.00. Claimant concedes that this is the receipt for his purchase of the typewriter.

“The general rule is that the measure of damages in a bailment of personal property is the difference in the fair market value thereof in its condition as delivered (to the bailee) versus its condition as returned . . . The cost of repairs may be considered . . . but the loss in fair market value is the pre-eminent measure of damages unless total repair costs are less than said loss” (Matter of Terranova v State of New York, 111 Misc 2d 1089, 1097 [Ct Cl 1982]).
The Court finds that the receipt for purchase of the typewriter in 2004, together with applicable depreciation, establish the fair market value of the typewriter at the time of loss as $80.00. Even assuming that claimant had offered admissible proof that repair would cost $100.00, that amount exceeds the fair market value of the property, as determined by the Court.
Accordingly, claimant is awarded damages in the amount of $80.00 plus statutory interest from the date of accrual, October 11, 2008, together with the amount of his filing fee, if any, in bringing the claim, pursuant to Court of Claims Act 11-a (2).
Let judgment be entered accordingly.

May 29, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Claimant’s Notice of Motion, filed April 8, 2009;
  2. Affidavit of Edward Koehl, sworn to March 30, 2009, and annexed exhibits;
  3. Declaration of Edward Koehl, sworn to March 30, 2009;
  4. Affirmation of Paul F. Cagino, dated May 5, 2009, and annexed exhibits;
  5. Reply Affirmation of Edward Koehl, filed May 15, 2009.

  1. [1]This and other decisions of the Court of Claims are accessible at the Court of Claims website.