Claimant brings this action to recover $5000.00 from the defendant for defective merchandise. This matter was tried by the court on August 20, 2007. At the trial claimant testified and did not produce any additional witnesses. Defendant presented the testimony of Mr. Ari Paul, its managing agent.

FACTUAL BACKGROUND

Claimant stated that he lived in the building for 15 years and had stored certain items, one being a wrought Iron bed, in a storage space landlord had made available to tenants.[petitioner's 1 in evidence photo of bed and appraisal]. The storage space was under lock and key and the key was in possession of the building's superintendent. The bed had been placed in the storage space by a building employee, now not known to claimant because there is frequent personnel change, and was labeled with his name on it. Sometime in March 2006 or March 2007 claimant discovered the item was missing and brings this action against the defendant.

Defendant's witness stated that there is a storage space in the building where the tenants store things. This room is in the basement and it's a dirty, dank old room not kept well. The room is locked and the key is in possession of the Superintendent. On May 2, 2005 written notice was sent to all tenants to label all items belonging to them in storage. Anything not labeled would be considered abandoned and discarded [see Defendant's "A" in evidence]. A second notice was sent on June 6, 2005 [Defendant's "B"]. These notices were slipped under each tenant's apartment door.

The notice provision called for notice, for anything other than rent, to be sent by Certified Mail [See Defendant's "C" in evidence]. The notice gave tenants until June 30, 2005 to label their property. Claimant states he did not receive any notice because he was not residing in the building at the time it was given and because it was not sent by certified mail, in accordance with the Lease's notice provision. In any event claimant states the notice has no effect because his property was labeled at the time he deposited it in the storage room. [*2]

LEGAL ANALYSIS

A bailment is the possession or the retention of property by one person under circumstances obligating him to deliver the property to another upon demand or at a given time. ( Rosen v. Village Chevrolet, Inc., 63 Misc 2d 174, 311 N.Y.S. 2d 230, [Civ. Ct. Qns. Cty 1970]). A bailment can be for mutual benefit, for the benefit of the bailor or for the benefit of the bailee. The standard of care required of the bailee varies with the type of bailment. When a bailment is solely for the benefit of the bailor it is a gratuitous bailment and the bailee's liability is limited to its gross negligence or conversion of the property. ( 15 NY Prac., NY Law of Torts § 12;105; Rosen v. Village Chevrolet, Inc., 63 Misc 2d 174, Supra; Voorhis v. Consolidated Rail Corp., 60 NY2d 878, 470 N.Y.S.2d 364, 458 N.E. 2d 823[1983]). One who stores another's property without compensation is not liable for destruction of the property unless due to his gross negligence (Siegel v. Spear & Co., 234 NY 479, 138 N.E. 414[1923]).

Defendant stored claimant's property without a fee thereby establishing a gratuitous bailment subjecting defendant to liability only upon a showing of gross negligence. The burden of proving bailee's negligence is upon the bailor. However, there is a presumption of gross negligence which arises from proof of bailment and failure to deliver the bailed property. This presumption shifts the burden of proof to the bailee who must then come forward with an explanation of the loss and how it occurred. It is not enough to show that the bailee used reasonable care in its custody of the bailed property if mysterious disappearance' is the only explanation. The bailee must produce admissible evidence demonstrating that the loss or destruction of the property resulted from some cause other than the bailee's negligence. The bailee must actually demonstrate the specific cause of the disappearance of the property; a mere showing that the bailee exercised due care is insufficient. If the bailee fails to produce such evidence, then the bailor has established negligence as a matter of law.

( 15 NY Pract.-Torts § 12-105 supra; Rosen v. Village Chevrolet, Inc., 63 Misc 2d 174,Supra ;Gurney v. Grant Trunk Ry. Co. Of Canada, 59 Hun 625, 37 NY St. Rep. 155, 14 N.Y.S. 321).

When defendant could not produce Claimant's bed a presumption of gross negligence arose requiring the defendant to come forward with a legally sufficient explanation to rebut this presumption. The burden of proof shifted to the defendant. Defendant has not provided this court with an explanation for the loss of Claimant's property and this court must find as a matter of law that it was grossly negligent.

Liability having been established, Claimant needs to establish damages.

In attempting to prove damages Claimant submits a sheet of paper with a photograph of a bed, and a one line statement from an "appraiser" which states that the value of the bed is $5,000.00. There is nothing on the record as to the identity or credentials of this "appraiser" or how he arrived at the value he assigned this property. It must be taken into account that the bed was placed in what the Claimant described as a dingy, dirty, dark old room and was kept there for years( at least four) before Claimant noticed its disappearance. Claimant did not produce evidence of the cost of the bed, its [*3]age and condition at the time of the loss or its replacement value ( Correa v. Midtown Moving, 4 Misc 3d 135(A), 791 N.Y.S. 2d 868 [App. Term 1st. 2004; Kemp v. Midtown Movers, 2003 NY Slip Op. 51154(U)[App. Term 2nd. & 11th. Jud. Dists, 2003]). Accordingly this court will not grant any evidentiary weight to the "appraiser's" submission. However, Substantial justice consistent with the rules of substantive law would best be achieved by awarding Claimant nominal damages in the amount of $100.00 for the loss of the bed.

Accordingly, judgment for the claimant against the defendant in the amount of $100.00 plus interest from March 14, 2007 plus costs and disbursements.

This constitutes the decision and judgment of this court.