New York State Court of Claims

New York State Court of Claims

MOHABIR v. THE STATE OF NEW YORK, #2009-040-083, Claim No. 114615


Synopsis


Claimant established by a preponderance of the credible evidence that the State was negligent in losing certain items of personal property. Award $163.70 plus interest.

Case Information

UID:
2009-040-083
Claimant(s):
MAXIMUS MOHABIR
Claimant short name:
MOHABIR
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114615
Motion number(s):

Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Maximus Mohabir, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 2, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 [1878]; 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 information.

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:
2 pairs of sweatpants @ $2.00 $ 4.00
1 sweater with hood 13.00
2 sweaters with hood @ $8.50 17.00
gym shorts 6.25
boots 10.00
boots 25.00
towel 2.00
fan 2.00
radio 15.00

headphones 5.50
beard trimmer 11.00
8 cassette tapes @ $2.00 16.00
2 vitamins @ $1.00 2.00
3 pots @ $3.00 9.00
2 bowls @ $1.00 2.00

10 candy bars @ $0.30 3.00
box of oatmeal 1.00
2 amino acids @ $2.00 4.00

pink oil lotion 12.75
work gloves 2.00
2 net bags @ $0.60 + 1.20
TOTAL $163.70


Accordingly, the Court finds and concludes that Claimant is entitled to judgment in the sum of $163.70, the depreciated value of the lost property as determined by the Court. This sum is to bear appropriate interest from December 18, 2006. To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).

The Chief Clerk is directed to enter judgment accordingly.


November 2, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims