New York State Court of Claims

New York State Court of Claims

KONIGSBERG v. THE STATE OF NEW YORK, #2001-005-011, Claim No. 99174


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 September 19, 1998, while he was at the Auburn law library his cell was opened without his permission and some of his personal property was removed. He claims 13 categories of property and alleges that their value totaled $1,219.40.

Claimant alleges that ". . . the officer-in-charge was negligent in his failure to ascertain the identity of the individuals asking that cells be opened" and that this negligence permitted his cell to be burglarized.

It is, of course, Claimant's burden to prove his claim by a fair preponderance of the creditable evidence. The difficulty with the proof of this claim is that Claimant is unable submit any evidence of the possession of the specific items which he claims to be the basis of this purported bailment. 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).
In support of his claim, Claimant was unable to submit evidence as to possession of the items alleged to have been taken, and also failed to submit any value of the same items. No property room records or commissary records were available to submit to the court. There are no forms I-64 in evidence.

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.

Nonetheless, 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