In this timely filed Claim, pro se Claimant, Anthony D. Amaker, has
established by a preponderance of the credible evidence that the Defendant was
negligent in losing certain items of his personal property when he was
incarcerated at Upstate Correctional Facility (Upstate) in Malone, New York.
The trial of this Claim was held by video conference on May 28, 2009, with the
parties at Clinton Correctional Facility in Dannemora, New York and the Judge at
the Court of Claims in Saratoga Springs, New York.
At the beginning of the trial, Claimant submitted into evidence, upon
stipulation, as Exhibit 1, a copy of his Claim with documentation attached. He
also submitted into evidence six other documents that were received without
objection from the Defendant. Claimant, who was the only witness, testified that
he was transferred to Upstate on October 31, 2001 and was incarcerated there
through February 3, 2003. He stated that he arrived at Upstate with seven bags
of property that were put into storage and he did not see his property again
until April 13, 2002. At that time, he was allowed to retrieve some legal
material but noticed that many of his personal items were missing. Mr. Amaker
asserted that he was assaulted by staff on September 5, 2002 and that items were
removed from his cell on that date. A list of those items is attached to his
Claim (Ex. 1) as Exhibit A. The witness further testified that on October 2,
2002 he received access to his property bin, which was being kept on his
“unit”, and several items of his personal property were missing as a
result of the State’s negligence. A list of those items is attached to
his Claim (Ex. 1) as Exhibit B.
Claimant further testified that he was “packed up” to go to Federal
Court on November 16, 2002, and that Correction Officer (CO) Martin violated
Department of Correctional Services (DOCS) regulations – Title 7 NYCRR
§§ 1700.2(a)(2) and 1700.7(b) (see Ex. 2) by not filling out a
Personal Property Transferred form, which is referred to as an I-64 form. He
also stated that he was transferred from Upstate to Great Meadow Correctional
Facility (Great Meadow) located in Comstock, New York on February 3, 2003. He
received his property at Great Meadow on February 4, 2003 and more items of his
property were missing. A list of those items is attached to his Claim (Ex. 1)
as Exhibit C.
“To establish a prima facie case of negligence in a bailment transaction,
[C]laimant must demonstrate that his property was deposited with [D]efendant and
[D]efendant failed to return it ... Once claimant meets his burden, there is a
rebuttable presumption that [D]efendant is negligently responsible for the loss,
and [D]efendant must come forward with proof explaining the loss”
(Rivera v State of New York, Ct Cl, Claim No. 109605, January 10, 2008,
Milano, J. [UID No. 2008-041-501], quoting Amaker v State of New York, Ct
Cl, Claim No. 105928, August 14, 2006, Hard, J. [UID #2006-032-511]; see
Claflin v Meyer, 75 NY 260, 262 ; Pollard v State of New York,
173 AD2d 906 [3d Dept 1991]; Singer Co. v Stott & Davis Motor
Express, 79 AD2d 227, 231 [4th Dept 1981]; Board of Educ. of Ellenville
Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept
1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]).
“With respect to value, Claimant must satisfy the court of the fair market
value of the items in question . . . Receipts are the best evidence of fair
market value [less depreciation], although uncontradicted testimony concerning
replacement value may also be acceptable (Kilpatrick v State of New York,
Ct Cl, Claim No. 110599, January 22, 2008, Scuccimarra, J. [UID No.
2008-030-001]; see Phillips v Catania, 155 AD2d 866 [4th Dept 1989];
Alston v State of New York, 9 Misc 3d 1126[A] [Ct Cl 2005]; Schaffner
v Pierce, 75 Misc 2d 21 [Nassau Co. Dist. Ct. 1973]).
Based upon the documentary evidence submitted (Exs. 1, 3, 4, 5 and 6), together
with Claimant's credible, plausible, and uncontradicted trial testimony, the
Court finds and concludes that Claimant has established, by a preponderance of
the credible evidence, that he possessed numerous items that were under the care
and control of Defendant. The State's refusal or inability to return the bailed
items on demand creates a presumption of negligence by Defendant, a presumption
that the State has failed to rebut.
The Court finds these items to be: one pair of sneakers, 8 envelopes, 47
stamps, 3 personal photographs, religious materials, 8 magazines, 7 college
books and 1 grammar book, Eastern Star book, soap, 2 shampoo, 3 deodorant, 2
baby powder, 2 Vaseline, 2 baby oil, olive oil, a bucket, an extension cord and
a pair of glasses. Claimant’s testimony and the exhibits demonstrate his
ownership of such materials and their loss. There appears to be no dispute that
Claimant was forcibly removed from his cell on September 5, 2002 and a number of
the lost items appear to relate to that event.
With respect to other items that Claimant asserts were lost, however, the Court
finds either that he did not establish that he possessed the items, or he only
described the items in general terms and did not provide specific information.
In particular, the Court is unable to credit the valuations Claimant placed on
items of sentimental or artistic value, such as his book manuscripts and the
publication costs he alleges were incurred, photographs, a family address book,
and lost legal papers. The Court finds and concludes that the value of some of
the items which were in Claimant's possession at the time of their loss had
depreciated due to their age and the fact that Claimant had used them
(see Ex. 1). The Court determines the depreciated value to be as