Claimant, an inmate appearing pro se, moves for summary judgment on his
bailment claim. The State of New York (hereinafter "State") concedes liability
but opposes the motion with respect to damages.
The facts as outlined by claimant in his supporting papers are undisputed. On
April 15, 1998, claimant was incarcerated at Coxsackie Correctional Facility
when he was transported to court for an appearance. Prior to leaving Coxsackie
Correctional Facility, claimant was directed and did in fact relinquish a
religious gold chain and medal. Several months thereafter, claimant was
returned to Coxsackie Correctional Facility but soon transferred to Southport
Correctional Facility. Claimant inquired as to the location of his gold chain
and medal and was advised in a memo that "[y]our medal is here in Southport in
your personal property." (Cl.'s Ex. 2). Claimant was then transferred to
Elmira Correctional Facility. After another inquiry, claimant was advised that
his gold chain and medal were not in his personal property upon his transfer
from Southport Correctional Facility to Elmira Correctional Facility. (Cl.'s
Ex. 3). After another transfer to Mid-State Correctional Facility, claimant was
again advised that the gold chain and medal were not in his personal property.
(Cl.'s Ex. 6).
Claimant served a notice of intention on the Office of the Attorney General on
April 26, 1999 by certified mail, return receipt requested. Thereafter, the
claim was served on the Office of the Attorney General on March 15, 2001 by
certified mail, return receipt requested, and filed with the Clerk of the Court
on March 22, 2001. The State filed a Verified Answer on May 1, 2001.
By way of this motion claimant argues he is entitled to summary judgment
including damages in the amount of $1,050 for the value of the gold chain and
medal. The State concedes there are no questions of fact as to liability, but
argues that questions of fact as to damages exists warranting a trial on the
issue of damages. With respect to the issue of liability, the court finds that
claimant has established a prima facie case of bailment. (Heede Hoist &
Mach. Co. v Bayview Towers Apts., 74 AD2d 598). As such, claimant's motion
seeking summary judgment on the issue of liability for the gold chain and medal
will be granted. Thus, the only remaining issue for the court is that of
damages, if any, to which claimant is entitled for the loss of his gold chain
It is well-settled that the court must determine the fair market value of the
missing or damaged property, which includes depreciation of the lost items.
(Schaffner v Pierce
, 75 Misc 2d 21, 24). Receipts are the best evidence
of fair market value, although uncontradicted testimony concerning replacement
value may also be acceptable. (Phillips v Catania
, 155 AD2d 866). Here,
however, claimant has submitted only a photocopy of a receipt for the missing
chain and medal dated November 15, 1993. (Cl.'s Ex. 8). The State objects to
the admissibility of said receipt arguing that the same is not evidence in
admissible form and, in any event, is partially illegible, thereby warranting a
trial on damages. (Affirmation of Carol A. Cocchiola, AAG, ¶ ¶ 5
& 6). Claimant indicates he will produce the original receipt at trial if
he is able to retrieve the same from the inmate records coordinator. Although
the court is able to read portions of the
(Cl.'s Ex. 8). an integral part of the
court's consideration of the fair market value of the missing chain and medal
will be claimant's testimony. While claimant may well be able to convince the
court at trial that the fair market value of the gold chain and medal is $1,050
as stated in the claim, such determination must be left for a trial on the issue
The parties are directed to advise the court in writing, within thirty (30)
days from the date of entry of this Decision & Order with the Clerk of the
Court, what discovery, if any, remains outstanding on the issue of damages.
Accordingly, in light of the foregoing, it is ORDERED that claimant's motion
for summary judgment, Motion No. M-69409, is GRANTED IN PART with respect to
liability for the gold chain and medal and denied with respect to damages. A
trial will be scheduled as soon as practicable with respect to damages.
Let interlocutory judgment be entered accordingly.
Claim, filed March 22, 2001.
Notice of Motion for Summary Judgment, Motion No. M-69409, dated November 23,
2004, and filed December 1, 2004.
Affidavit of Jose Medina, in support of motion, dated and verified November 23,
2004, with attached exhibits.
Memorandum of Law in Support of Claimants [sic] Motion for Summary
Judgment, dated November 23, 2004.
Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated January
10, 2005, and filed January 12, 2005.
Letter from Jose Medina to Court, in support of motion, dated January 15, 2005,
and received January 20, 2005.