Pro se Claimant failed to establish Defendant was negligent regarding the loss of certain items of personal property. Claim dismissed.
|Claimant short name:||CHUNG|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||LeVar Chung, #99-A-1865, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Thomas R. Monjeau, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||January 4, 2018|
|See also (multicaptioned case)|
In this Claim, pro se Claimant, LeVar Chung, failed to establish by a preponderance of the credible evidence that Defendant was negligent in losing certain items of his personal property when he was transferred from Green Haven Correctional Facility (hereinafter, "Green Haven") to Eastern NY Correctional Facility (hereinafter, "Eastern"). The trial of this Claim was held by video conference on October 18, 2017, with the parties at Eastern and the Judge at the Court of Claims in Albany, New York.
At trial, the Court had marked as Court Exhibits 1 and 2, respectively, Claimant's filed Claim and the State's Answer. Claimant submitted into evidence three documents (Exs. 1, 2 and 3). The State submitted into evidence one document (Ex. A). Claimant testified on his own behalf, and Defendant offered the testimony of Lieutenant (hereinafter, "Lt.") Patrick Sullivan.
Claimant testified that he was transferred from Green Haven to Eastern. When his property was packed, he had five bags (see Ex. A, p. 2 [Personal Property Transferred form (hereinafter, "I-64 form"). Claimant stated that an inmate transferred from one facility to another is allowed to transport up to four bags of personal property and that personal property in excess of that limit will be shipped to the new location at the inmate's expense. He left Green Haven on August 3, 2012 with four bags of property and received those four bags of property at Eastern and signed the I-64 form on August 4, 2012 (id.). Claimant completed a facility disbursement form on August 3, 2012 to have $14.41 deducted from his inmate account to have the fifth property bag mailed to Eastern (id., p. 12). Claimant stated that he was advised to go to the mail property room at Eastern on August 16, 2012 (see id., p. 9) to pick up the mailed bag. Claimant testified that three items were missing from his bag: a legal transcript, a Walkman radio, and a beard trimmer. Claimant also stated that the seals, with his name on them, that were affixed to the bag when it was mailed from Green Haven, were on the bag when he received it at Eastern but that the neck of the bag was loose and his three items were either lost or stolen during transit. Claimant conceded that there is no indication in the logbook that he stated that any of his items were missing (id.). He also testified that the log shows that the bag was sent by UPS and was insured (id.). He further testified that he did not file an insurance claim with UPS for the missing items.
Lt. Sullivan testified that he has been employed by the Department of Corrections and Community Supervision for 23 years and has been working at Eastern for five and one-half years. He stated that, in August 2012, he was working at Eastern as a lieutenant. The witness testified that he conducted an investigation regarding Claimant's inmate claim for the items he allegedly lost. Following his investigation, he recommended that the claim be denied (Ex. A, p. 6). He stated that Claimant never notified any staff member at the time he picked up his bags that any items were missing from any of the bags (id.). He further testified that, during his investigation, there was no indication that the mailed property bag was broken, torn, ripped, or otherwise open when Claimant received it.
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 ; 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]).
Based upon the credible evidence submitted at trial and the testimony adduced, the Court finds and concludes that Claimant has failed to establish, by a preponderance of the credible evidence, that the items he asserts were lost were contained in the bag that he paid to have mailed to Eastern. Claimant did not establish by a preponderance of the credible evidence that the items he asserts are lost were lost by Defendant and not by the carrier paid to deliver the items, i.e., the United States Postal Service, UPS, or another carrier.
Accordingly, the Court finds that Claimant has failed to establish his Claim for lost personal property by a preponderance of the credible evidence, and the Claim, therefore, is dismissed.
All motions are denied as moot. All objections upon which the Court reserved determination during trial are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
January 4, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims