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
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
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
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
case. The claim must be and hereby is
All motions heretofore not ruled upon are denied.
Let judgment be entered accordingly.