New York State Court of Claims

New York State Court of Claims

MORILLO v. THE STATE OF NEW YORK, #2008-013-511, Claim No. 107193


Synopsis



Case Information

UID:
2008-013-511
Claimant(s):
CESAR MORILLO
Claimant short name:
MORILLO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107193
Motion number(s):

Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant’s attorney:
CESAR MORILLO, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 29, 2008
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The claim herein was filed on January 14, 2003, and sounds in a bailment for the loss of certain of Claimant’s personal property while he was an inmate assigned to Wende Correctional Facility (Wende). The essential underlying facts are not in dispute. On April 23, 2001, Claimant was sent to the Special Housing Unit at Wende, and his personal property was packed up. Claimant wanted to send back to his home some photographs in two albums and other personal property consisting of two shirts and he signed a personal property disposal form to allow the mailing of those items.


That property was given to a correction officer, but it was never received at his home. Claimant has exhausted his administrative remedies (Court of Claims Act §10[9]) and seeks recompense for the value of the lost property. Initially I find that Claimant has established the elements of a bailment, to wit, that items of personal property were delivered into the hands of the Department of Correctional Services (DOCS); that the missing items were not returned to Claimant, despite his demand for the same, and that the Defendant has not explained the loss of the property. I find that the Defendant was the bailee of the missing property and that Claimant has made out a prima facie claim by demonstrating that the property was not returned upon demand. A presumption arises that the loss occurred through the negligence of the Defendant. There has been no rebuttal of this presumption, and thus the Claimant is entitled to recover damages for the loss of the items of personal property.

Claimant testified, persuasively, that the two missing shirts were purchased in 1994 and had an original value of $48.00 each, and that the photo albums, for which he had no receipts, were purchased in 1998 at a cost of $1.95 and at a later date at Wende at a cost of $2.05. Claimant testified that he was told that he could assert a value of $2.00 per photograph, although no documentation to support such a valuation was presented to the Court.

I find that Claimant is entitled to the full value of the two photo albums, a total of $4.00. As to the shirts, Defendant has introduced into evidence as Exhibit B an Inmate Personal Property Claim - Depreciation Schedule/Valuation Guide issued through DOCS, which would purport that a shirt has a life expectancy of only one year, and implying that there is no residual value to the lost shirts. I note that such document is only a guide, and as such is of limited benefit to the Court. Acknowledging that the shirts cost $48.00 each and were six years old at the time of their loss, I award $9.00 each, or a total of $18.00. As for the photographs, it appears that Claimant seeks some $796.00, presumably for some 398 photos at $2.00 each, although a specific number of photographs is not alleged in the papers before me. I note that there is no sound basis for determining the sentimental value of personal photographs, here of family and friends from Claimant’s homeland in the Dominican Republic, and generally only the intrinsic value may be awarded. Thus I award nothing more than a modest amount for the lost photographs of $40.00. I therefore find that Claimant has been damaged in the total amount of $62.00.

Accordingly, Claimant is awarded the sum of $62.00, with appropriate interest from April 23, 2001 until October 23, 2001, six months from the accrual of this claim, with a suspension of interest pursuant to Court of Claims Act §19(1) until January 14, 2003, the date of filing of this claim, and with appropriate interest thereafter.

It is ordered that to the extent Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2). All motions not heretofore ruled upon are now denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.

October 29, 2008
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims