Claimant brought a successful bailment claim and was awarded $456 plus interest.
|Claimant short name:||KOEHL|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DIANE L. FITZPATRICK|
|Claimant's attorney:||EDWARD KOEHL
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Ray A. Kyles, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 13, 2019|
|See also (multicaptioned case)|
Claimant filed a claim seeking reimbursement for property he alleges was lost or damaged by the State while he was incarcerated and was being transferred from Five Points Correctional Facility (Five Points) to Auburn Correctional Facility (Auburn). Claimant was released from prison. This claim was scheduled for trial and Claimant was the only witness.(1) Defendant conceded liability at trial leaving only the issue of damages.
Claimant testified that his property was packed at Five Points on June 28, 2010 and listed on an I-64 Form.(2) Claimant arrived at Auburn on July 6, 2010 and Correction Officer (CO) DuBois, who worked in the property room at Auburn, checked in his property and circled the missing items on the I-64 Form.(3) Those same items were listed by Claimant on an Inmate Claim Form, dated July 6, 2010 for his lost property.(4) Claimant also compiled a second Inmate Claim Form, dated July 19, 2010.(5) The two claim forms were combined administratively into one claim and given one claim number. The first claim form lists the following missing or damaged property and the amount of reimbursement requested:
12 packs of Newport cigarettes $ 103.80
1 SONY AM/FM radio tape player 33.34
1 Koss CL 20 headphones 27.99
1 Casio wristwatch 31.00
1 pair Nike sneakers 42.00
1 Smith-Corona typewriter printer motor assembly 200.00
1 lamp 9.00
1 Remington beard clippers 21.00
The second claim form listed the following:(6)
1 Fan $ 17.00
5 Cassette tapes 50.00
Replacement documents 20.00
Refund copy cost 3.00
Although the claims were approved and Defendant does not dispute a bailment was created and the property was missing or damaged, Claimant could not produce receipts to support his damages for the facility. The only receipt that Claimant provided was the receipt for the repair of his typewriter before he was transferred to Auburn. The receipt(7) reflects the cost of the printer motor, which Claimant testified was broken again when he received his property at Auburn. Claimant testified that receipts for the other items were lost at Auburn, although he had his receipts when he prepared the claim form. Claimant also testified that he paid $8.65 per pack of cigarettes at the Green Haven commissary before he was transferred to Five Points; he lost 12 packs of the cigarettes. Claimant also testified that he paid $42 for the sneakers and $21 for the beard clippers, as new items. He also lost a radio, headphones, a watch, and the plug on his lamp was broken in transit. No age was given for these items and no depreciation was deducted but Claimant testified the radio was only a couple of years old.
Claimant was asked about the replacement of documents that he listed on second Claim Form. He testified that these were documents that were mailed to him at Five Points after his property was packed and awaiting transfer but were never placed in his property bags. Claimant filed a grievance for his lost mail. The superintendent at Auburn indicated that a review of the Five Points mail log indicated that Claimant received no legal mail during the time he was awaiting transfer to Auburn.(8) Claimant made a request for copies of the mail log through the Freedom of Information Law (FOIL) and received the log showing that he received mail from the US District Court Clerk, "NYS DOCS # Albany"; "Green Have CF"; "Def. Con. Serv."; and "Green Haven" June 28, 2010. Although it is not clear that all of the mail was legal mail, clearly, the letter from the District Court would fall into that category. Although, typically, lost mail and documents have no value, the cost of replacement can be compensated if the legal documents are still useful for a pending or future legal proceeding (see 7 NYCRR [Department of Corrections and Community Supervision] 1700.8). Claimant testified he had to pay for the District Court to copy and resend the documents and he estimated the cost for that to be $20.
For the other lost property, Claimant bears the burden to prove the fair market value of the items he lost which may be calculated from the original price minus reasonable depreciation (Phillips v Catania, 155 AD2d 866 [4th Dept 1989]). Receipts of purchase are the best evidence of value, but testimony of the cost to replace may also be persuasive (Taylor v State of New York, UID No. 2016-029-080 [Ct Cl, Mignano, J., Oct. 17, 2016]; Rush v State of New York, UID No. 2007-030-019 [Ct Cl, Scuccimarra, J., June 18, 2007]).
Claimant's estimate of the value of the lost items on the claim form and through his testimony is the only evidence of value of the lost property other than for the cost to repair the typewriter for the printer motor assembly. The Court accepts Claimant's testimony as to his loss and the value of the items at the time of purchase. The Court assesses 30 percent depreciation for all items that weren't new listed on the first Claim Form (SONY AM/FM Radio -$ 33.34 minus 30%= $23.34; Headphones - $27.99 minus 30% = $19.59; Casio watch - $31.00 minus 30% = $21.70, and 50% depreciation for the lamp - 9.00 minus 50% = $4.50) in the amount of $69.13. Claimant is awarded $103.80 for the lost cigarettes; $42 for the sneakers, $21.00 for the clippers, and $200 for the cost of repairing the typewriter (Beaubrum v State of New York, UID No. 2019-038-108 [Ct Cl, DeBow, J., Aug. 1, 2019). The Court will also award Claimant $20 for the cost of replacing the District Court documents.
Accordingly, Claimant is awarded the total sum of $455.93, plus interest from September 7, 2010. Claimant is entitled to reimbursement of any filing fee he pain in accordance with Court of Claims Act section 11-a. To the extent any motions remain undecided, they are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
December 13, 2019
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
1. Claimant subpoenaed Correction Officer DeBois for trial but he failed to appear.
2. Exhibit 5.
3. Exhibit 5.
4. Exhibits 1, A, and B.
5. Exhibit B.
6. Exhibit B.
7. Exhibit 4.
8. Exhibit 6.