Claimant exhausted his administrative remedies regarding the property loss
on August 19, 2003 (see
Court of Claims Act § 10; 7 NYCRR Part
1700) and the claim was timely filed on October 15, 2003.
Claimant was the
only witness at trial. The defendant called no witnesses. The only exhibit,
claimant's Exhibit 1, is a copy of the claimant's claim, with attachments,
largely consisting of an inventory of personal possessions, with dollar values
assigned, which claimant alleges defendant lost during the transfer.
Claimant testified that during the transfer referred to above, he had four
bags of personal possessions which were to be transferred, but that upon arrival
at his new facility, only three bags were returned to him.
testimony detailing his lost possessions was limited to describing articles of
clothing and one reference to towels. The items of clothing were identified as
new, with price tags still affixed.
Although claimant's Exhibit 1, detailing
line by line the personal possessions claimant alleges were lost, includes
entries for photographs (valued at $500), cassette tapes (valued at $125), chess
sets (valued at $40), and a radio (valued at $37.95), claimant gave no testimony
concerning these items, limiting his testimony to lost articles of clothing and
towels. Accordingly, as to the items listed in claimant’s Exhibit 1, the
loss of which is unsupported by testimony, the claimant has failed to meet his
burden of proving the defendant's negligence by a preponderance of the credible
Defendant called no witnesses and offered no explanation for or
defense to the loss of claimant’s personal possessions.
establish a prima facie case of negligence in a bailment transaction, claimant
must demonstrate that his property was deposited with the defendant and the
defendant failed to return it. . . . Once claimant meets his burden, there is a
rebuttable presumption that the defendant is negligently responsible for the
loss, and defendant must come forward with proof explaining the loss. . . . The
measure of recovery for the loss of bailed property is fair market value, which
can be established by evidence of the original purchase price less a reasonable
rate of depreciation” (Amaker v State of New York
[Ct Cl, Hard, J.,
; see Claflin v Meyer
, 75 NY 260 ; Weinberg v D-M Rest.
, 60 AD2d 550 [1st Dept 1977]; Board of Educ. of Ellenville Cent.
School v Herb's Dodge Sales & Serv.
, 79 AD2d 1049, 1050 [3d Dept 1981];
Miceli v State of New York
, 179 Misc 2d 424, 428-429 [Ct Cl
Claimant met his initial burden of showing that certain items of
his were in defendant’s possession and that defendant failed to return
them. Defendant offered no explanation for not returning claimant’s
property. Accordingly, the defendant is found liable for the loss of claimant's
On October 31, 2002, the date of loss, claimant signed a
statement of “Personal Property Transferred,” a copy of which is
attached to Exhibit 1. The statement indicated that four bags were transferred
and further indicated what types and amount of clothing and other items were
transferred. The relevant items of property listed in the statement include
seven (7) T-shirts, three (3) pairs of sweat pants, six (6) sweat shirts and two
Claimant’s Inmate Claim Forms, also part of
claimant’s Exhibit 1, were prepared on November 20, 2002 and January 21,
2003, respectively, and state that claimant lost ten (10) T-shirts, five (5)
pairs of sweat pants, six (6) sweat shirts (hooded and otherwise) and two (2)
The Court finds that claimant’s lost items of clothing will
be limited to those items contained in the statement of “Personal Property
Transferred” prepared and signed on October 31, 2002.
value, the Court will be guided by the uncontradicted values listed in
claimant’s Inmate Claim Form of November 20, 2002 and the amended Inmate
Claim Form of January 21, 2003 (see Miceli
, 179 Misc 2d at 428).
set forth above, claimant is entitled to recover the fair market value of his
property at the time it was lost, not the cost to purchase such property. The
values provided by claimant were for new, unworn, items of clothing. Even so,
clothing, particularly so personal an item as clothing, once purchased, even if
unworn, depreciates. Accordingly, the Court finds such depreciation to be 25% of
the value when purchased.
The claimant is awarded damages as follows: seven
(7) T-shirts @ $9.00 ($63.00), three (3) pairs of sweat pants @ $20.50 ($61.50),
six (6) sweat shirts totaling $150.45 and two towels @ $23.00 ($46.00). These
amounts total $320.95. Depreciation reduces the fair market value of those items
The Court awards claimant the sum of $240.71 for the new
clothing and two towels lost by defendant, with interest from October 31, 2002.
Claimant is also awarded, as a taxable disbursement, the actual amount of any
fee paid to file the claim, pursuant to Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.