Opinion
# 2015-040-002 Claim No. 120087
01-13-2015
VICTOR KEVEN THOMAS, 92-B-1669 v. STATE OF NEW YORK
Victor Keven Thomas, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
Pro se prisoner - State was responsible for his bailment claim. Awarded $52.50.
Case information
| UID: | 2015-040-002 |
| Claimant(s): | VICTOR KEVEN THOMAS, 92-B-1669 |
| Claimant short name: | THOMAS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120087 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Victor Keven Thomas, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 13, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In this timely filed Claim, pro se Claimant, Victor K. Thomas, has established by a preponderance of the credible evidence that Defendant was negligent in losing certain items of his personal property when he was incarcerated at Franklin Correctional Facility in Malone, New York (hereinafter "Franklin"). The trial of this Claim was held by video conference on November 7, 2014, with the parties at Upstate Correctional Facility in Malone, 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 four exhibits. Exhibit 1 is a copy of his administrative claim form he filed with the Department of Corrections and Community Supervision (hereinafter "DOCCS"); Exhibit 2 consists of copies of four inmate permits issued to Claimant by Franklin; Exhibit 3 is a copy of a Review of Superintendent's Hearing; and Exhibit 4 is a copy of a Decision and Judgment regarding an Article 78 matter relating to the above-mentioned Superintendent's Hearing.
Claimant, who was the only witness, testified that, while he was incarcerated at Franklin on March 14, 2011, he was taken from his housing unit and transported to the Special Housing Unit (hereinafter "SHU"). He testified that he was not given an opportunity to inventory his property. He said that, when he was released from SHU back to the general prison population at a different correctional facility, he inventoried his items and realized several were missing.
Claimant submitted an administrative claim to Franklin seeking reimbursement for the lost items (see Ex. 1). The claim was denied on April 5, 2011 and that determination was upheld on administrative appeal on April 10, 2011 (id.).
"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, UID No. 2008-041-501 [Ct Cl, Milano, J., Jan. 10, 2008], quoting Amaker v State of New York, UID No. 2006-032-511 [Ct Cl, Hard, J., Aug. 14, 2006]; 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, UID No. 2008-030-001 [Ct Cl, Scuccimarra, J., Jan. 22, 2008]; 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 County Dist. Ct. 1973]).
Based upon the documentary evidence submitted (Exs. 1 & 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 all 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: a portable radio, headphones and a clip-on lamp. These are the items that Claimant asserted were lost on his Inmate Claim Form (Ex. 1). At trial, Claimant testified that he also lost a fan and that he had a permit for the fan (see Ex. 2). However, the Court finds that Claimant did not establish that he possessed the item on March 14, 2011. Also, the Court gives more credence to the Inmate Claim Form (Ex. 1), which did not list the fan as missing, than to Claimant's trial testimony regarding the fan because the form was filed closer in time to the incident and Claimant's memory may have faded in the last three plus years. In addition, the Court credits Exhibit 2 (the facility permits) regarding the age of the items Claimant lost over Claimant's testimony. The permits establish that Claimant had the radio, headphones and lamp since at least July 25, 2006.
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:
1 radio $ 25.00
1 headphones $ 20.00
1 clip-on lamp $ 7.50
TOTAL $ 52.50
Accordingly, the Court finds and concludes that Claimant is entitled to judgment in the sum of $52.50, the depreciated value of the lost property, inclusive of interest, as determined by the Court. 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.
January 13, 2015
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims