New York State Court of Claims

New York State Court of Claims

KONIGSBERG v. THE STATE OF NEW YORK, #2001-005-010, Claim No. 96046


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:
Harold KonigsbergPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Christopher Wiles, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 6, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant is an inmate under the custody and control of the New York State Department of Correctional Services and at all pertinent times herein he was housed at the Auburn Correctional Facility (Auburn). He alleges a bailment in this claim.

Claimant alleges that on February 15, 1996, he was placed in the Special Housing Unit (SHU) at Auburn after the disposition of a Tier III disciplinary hearing. He states that his removal from his cell was immediate and his personal property was packed by correction officers. Thus, on the day of Claimant's transfer, he was summarily removed from his cell, and transferred to the SHU. His personal property located in his cell was packed by correction officers in his absence. He further states that he was never shown or provided with any I-64 forms concerning his personal property.

One year later, on February 14, 1997, he was released from SHU and he requested the return of his property. He states that his property consisted of some 22 bags and he itemizes the contents into some 12 categories, including trial transcripts, various appellate briefs, typewriter ribbons, clothing, blankets, food, etc. He has never seen his property since then. He claims $2,000,000 in damages and $2,000,000 million in personal suffering.

It is, of course, Claimant's burden to prove his claim by a fair preponderance of the creditable evidence. Generally, when a Claimant has established a bailment, and where the Defendant was the bailee of his personal property, it is obligated to exercise reasonable care for the property entrusted to it. When a demand for return of the property is made and the bailee is unable to return it, a presumption arises that the loss occurred through the negligence of the Defendant (
Heede Hoist & Mach. Co. v Bayview Towers Apts., 74 AD2d 598).
The measure of recovery where bailed property is not produced upon demand is the fair market value of the property, which is the value of the original purchase price less a reasonable rate of depreciation (
Phillips v Catania, 155 AD2d 866; Schaffner v Pierce, 75 Misc 2d 21).
However, Claimant is unable to submit evidence or proof of the possession of the specific items which he claims to be the basis of this bailment and has also failed to prove the value of the items. There are no forms I-64 in evidence, either preceding the Claimant's placement in SHU or subsequent to his release. Thus there is no evidence, beyond Claimant's sole testimony, verifying precisely what property, if any, was allegedly missing. Furthermore, there was no evidence, beyond Claimant's unsupported and uncorroborated testimony as to the value of the allegedly missing items. I am aware that Claimant has asserted that all evidence supporting his claim has been taken or destroyed by the Defendant through certain correction officers.

However, without competent proof of the possession and value of the purportedly missing property, Claimant has failed to establish a
prima facie case. The claim must be and hereby is dismissed.
All motions heretofore not ruled upon are denied.

Let judgment be entered accordingly.

August 6, 2001
Rochester, New York

Judge of the Court of Claims