In this timely filed Claim, pro se Claimant, Maximus Mohabir, 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 Bare Hill Correctional Facility in Malone, New York (Bare Hill).
The trial of this Claim was held by video conference on September 3, 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,
that was filed with the Clerk of the Court on December 17, 2007. Later, he
introduced into evidence, without objection, as Exhibit 2, the Claim that he
served upon the Attorney General, which he used as a reference at trial.
Claimant, who was the only witness, testified that, while he was incarcerated at
Bare Hill on November 27, 2006, he was taken in handcuffs from his cubicle and
transported to the Special Housing Unit. He testified that he was not given an
opportunity to inventory his property. The Claim asserts that he was not given
a written inventory of his property as required by Department of Correctional
Services (DOCS) directives (see Ex. 1, ¶ 7). He stated that he did
not see his property until December 18, 2006 when he was brought to the Draft
Room in preparation for his transfer to Upstate Correctional Facility in Malone,
New York. It was at that point that he realized that many of his personal items
were missing. A list of those items is attached to his Claim.
“To establish a prima facie case of negligence in a bailment transaction,
[C]laimant must demonstrate that his property was deposited with the [D]efendant
and the [D]efendant failed to return it . . . Once [C]laimant meets his burden,
there is a rebuttable presumption that the [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 and 2), 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: 2 pairs of sweatpants, 3 sweaters with
hoods, 1 pair of gym shorts, 2 pairs of boots, 1 towel, 1 fan, 1 radio, 1 set of
headphones, 1 beard trimmer, 8 cassette tapes, 2 containers of vitamins, 3 pots,
2 bowls, 10 candy bars, 1 box of oatmeal, 2 bottles of amino acids, 1 container
of pink oil lotion, 1 pair of work gloves and 2 net bags. Claimant’s
testimony and the exhibits demonstrate his ownership of such materials and their
loss. With respect to the 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
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 follows: