New York State Court of Claims

New York State Court of Claims

McGOWAN v. THE STATE OF NEW YORK, #2009-041-510, Claim No. 113467


Synopsis

Claimant awarded $161.26 for loss of personal property, including, among other items, a typewriter and television set, where defendant conceded liability for lost items.

Case Information

UID:
2009-041-510
Claimant(s):
JOSEPH McGOWAN, 97-A-3515
Claimant short name:
McGOWAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113467
Motion number(s):

Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
JOSEPH McGOWANPro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
By: Thomas R. Monjeau, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 27, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Joseph McGowan (claimant), while an inmate at Clinton Correctional Facility (Clinton), alleges that defendant lost a number of his personal possessions. At trial, the parties stipulated that defendant was responsible for the loss of claimant’s personal possessions and further agreed that the only issue remaining for the Court was to determine the value of claimant’s lost possessions.


“The general rule is that the measure of damages in a bailment of personal property is the difference in the fair market value thereof in its condition as delivered (to the bailee) versus its condition as returned . . . The cost of repairs may be considered . . . but the loss in fair market value is the pre-eminent measure of damages unless total repair costs are less than said loss” (Matter of Terranova v State of New York, 111 Misc 2d 1089, 1097 [Ct Cl 1982]).

While the claim originally sought the amount of $406.89 in damages, representing the full value of claimant’s lost possessions when new (except for $1.55 claimant depreciated for seven pair of jockey underwear), at trial, the claimant reduced his demand by $11.07 (due to a later-located facial trimmer), ultimately seeking $395.82 in damages. Defendant has offered claimant $86.26, representing its assessment of the value of claimant’s possessions at the time of loss, a difference of $309.56 from claimant’s assessment of value.

The difference of $309.56 in value between the parties is substantially composed of two items. Claimant seeks $87.26 for the loss of a 50-day-old television, and defendant has offered nothing for it, indicating the television was not listed on an I-64 form when claimant was transferred from Clinton to Southport Correctional Facility (Southport). As to the second item, a seven-year-old typewriter, claimant seeks its value when new of $145.19, and defendant has offered $30.00, a difference of $115.19.

All of claimant’s lost possessions are set forth on the face page of Exhibit 1. Also set forth thereon are the ages of the lost possessions, their original cost, the value sought by claimant for each item and the amount offered for each by defendant (totaling to $86.26). Leaving aside for a moment the issue involving claimant’s lost television, the Court finds that the defendant’s offer of value on every other item equals the fair market value of each of claimant’s lost possessions at the time of its loss. For example, responding to claimant’s reimbursement request of $25.98 for the loss of six packs of cigarettes, defendant offered claimant $21.90, and for the loss of the seven-year-old typewriter, at an original cost of $145.19, defendant offered $30.00. Having found that for each of the items listed (other than the television), defendant’s offer of reimbursement was of fair market value at time of loss, no additional award beyond defendant’s offer of $86.26 is due claimant on those items.

Claimant purchased the television on July 24, 2006 at a cost of $87.26, and properly had defendant’s permission to own it (these facts are confirmed by Exhibit 3). Approximately eight weeks later, defendant lost or misplaced the television. Defendant notes that none of claimant’s I-64 forms, which ostensibly record claimant’s personal possessions as he was moved from Clinton to Southport, record that claimant possessed a television. While that is true, there is no pre-printed category on the I-64 form noting an inmate’s ownership of a television. Yet, there is a pre-printed category for a radio/tape player.

Claimant credibly testified, without contradiction, that when sent to Clinton’s Special Housing Unit (SHU) from the prison’s general population on September 12, 2006, his television was confiscated, as it was not permitted in SHU. Returning from SHU on September 16, 2006 to find the television missing, claimant credibly testified he was informed that it had been sent to Clinton’s “dressing room” and that he would receive a voucher for it. Confirming that account is Exhibit 4, claimant’s letter of October 14, 2006, authored immediately prior to his transfer to Southport, in which he seeks information about the missing television, missing under circumstances to which claimant testified. Claimant never received a voucher for the television.

The claimant has proven by a preponderance of the credible evidence that he rightfully possessed a television that on July 24, 2006 had cost him $87.26 new, and that the television, due to defendant’s negligence, was lost on or about September 16, 2006, approximately 54 days later.

Accordingly, defendant is found liable to the claimant in the amount of $75.00 for the loss of the television, representing its fair market value at the date of its loss. Combined with the previous finding of entitlement to $86.26, claimant is awarded total judgment in the amount of $161.26, with interest from September 16, 2006, together with the actual amount of any fee paid to file the claim, as a taxable disbursement, pursuant to Court of claims Act §11-a(2).

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.



October 27, 2009
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims