Joseph McGowan (claimant), while an inmate at Clinton Correctional Facility
(Clinton), alleges that defendant lost a number of his personal possessions. At
trial, the parties stipulated that defendant was responsible for the loss of
claimant’s personal possessions and further agreed that the only issue
remaining for the Court was to determine the value of claimant’s lost
“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]).
While the claim originally sought the amount of $406.89 in damages,
representing the full value of claimant’s lost possessions when new
(except for $1.55 claimant depreciated for seven pair of jockey underwear), at
trial, the claimant reduced his demand by $11.07 (due to a later-located facial
trimmer), ultimately seeking $395.82 in damages. Defendant has offered claimant
$86.26, representing its assessment of the value of claimant’s possessions
at the time of loss, a difference of $309.56 from claimant’s assessment of
The difference of $309.56 in value between the parties is substantially
composed of two items. Claimant seeks $87.26 for the loss of a 50-day-old
television, and defendant has offered nothing for it, indicating the television
was not listed on an I-64 form when claimant was transferred from Clinton to
Southport Correctional Facility (Southport). As to the second item, a
seven-year-old typewriter, claimant seeks its value when new of $145.19, and
defendant has offered $30.00, a difference of $115.19.
All of claimant’s lost possessions are set forth on the face page of
Exhibit 1. Also set forth thereon are the ages of the lost possessions, their
original cost, the value sought by claimant for each item and the amount offered
for each by defendant (totaling to $86.26). Leaving aside for a moment the
issue involving claimant’s lost television, the Court finds that the
defendant’s offer of value on every other item equals the fair market
value of each of claimant’s lost possessions at the time of its loss. For
example, responding to claimant’s reimbursement request of $25.98 for the
loss of six packs of cigarettes, defendant offered claimant $21.90, and for the
loss of the seven-year-old typewriter, at an original cost of $145.19, defendant
offered $30.00. Having found that for each of the items listed (other than the
television), defendant’s offer of reimbursement was of fair market value
at time of loss, no additional award beyond defendant’s offer of $86.26 is
due claimant on those items.
Claimant purchased the television on July 24, 2006 at a cost of $87.26, and
properly had defendant’s permission to own it (these facts are confirmed
by Exhibit 3). Approximately eight weeks later, defendant lost or misplaced the
television. Defendant notes that none of claimant’s I-64 forms, which
ostensibly record claimant’s personal possessions as he was moved from
Clinton to Southport, record that claimant possessed a television. While that
is true, there is no pre-printed category on the I-64 form noting an
inmate’s ownership of a television. Yet, there is a pre-printed category
for a radio/tape player.
Claimant credibly testified, without contradiction, that when sent to
Clinton’s Special Housing Unit (SHU) from the prison’s general
population on September 12, 2006, his television was confiscated, as it was not
permitted in SHU. Returning from SHU on September 16, 2006 to find the
television missing, claimant credibly testified he was informed that it had been
sent to Clinton’s “dressing room” and that he would receive a
voucher for it. Confirming that account is Exhibit 4, claimant’s letter
of October 14, 2006, authored immediately prior to his transfer to Southport, in
which he seeks information about the missing television, missing under
circumstances to which claimant testified. Claimant never received a voucher
for the television.
The claimant has proven by a preponderance of the credible evidence that he
rightfully possessed a television that on July 24, 2006 had cost him $87.26 new,
and that the television, due to defendant’s negligence, was lost on or
about September 16, 2006, approximately 54 days later.
Accordingly, defendant is found liable to the claimant in the amount of $75.00
for the loss of the television, representing its fair market value at the date
of its loss. Combined with the previous finding of entitlement to $86.26,
claimant is awarded total judgment in the amount of $161.26, with interest from
September 16, 2006, together with the actual amount of any fee paid to file the
claim, as a taxable disbursement, pursuant to Court of claims Act
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.