New York State Court of Claims

New York State Court of Claims

VENTIMIGLIA v. THE STATE OF NEW YORK, #2000-028-0536, Claim No. 102952, Motion No. M-63305


Claimant's motion for summary judgment, in bailment case, granted only to extent Defendant conceded liability as to typewriter. Material issue of fact exists as to whether jewelry items were contraband.


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Kathleen M. Resnick, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 5, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on claimant's motion for an order striking defendant's affirmative defenses, granting summary judgment, compelling the attendance of witnesses, and setting a trial date

  1. Notice of Motion and Supporting Affidavit of Sebastian Ventimiglia, pro se, filed March 29, 2001, with annexed Exhibits A-I ("Ventimiglia affidavit")
  1. Affirmation in Opposition of AAG Kathleen M. Resnick, filed April 17, 2001, with annexed Exhibits A - E ("Resnick affirmation")
  1. Reply Affidavit of Sebastian Ventimiglia, pro se, filed April 25, 2001, ("Ventimiglia Reply")
  1. Filed papers: Claim, filed Aug. 21, 2000; Answer, filed Sept. 26, 2000. Decision and Order filed January 18, 2001.

This claim alleges that on May 27, 2000, as Claimant was being processed upon arrival at Eastern Correctional Facility, he discovered that his personal word processor had been severely damaged while in Department of Correctional Services (DOCS) possession. Furthermore, as part of this processing, he was asked to turn over certain items -- including a gold cross and chain -- so that permits could be issued. On May 31, 2000, facility officials returned other personal items, but failed to return to him the gold cross and chain. Claimant filed and served this claim on August 21 and 23, 2000, respectively. As a result of earlier motion practice, the Court directed the Defendant to provide a Bill of Particulars regarding its affirmative defenses, which it has done (Ventimiglia affidavit, Exhibit E). Claimant now moves for summary judgment, maintaining, inter alia, that the Defendant's fifth affirmative defense supports liability for the gold cross and chain (Ventimiglia affidavit, ¶ 9).

The rule governing summary judgment is well established: The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853), and such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562). "[R]egardless of the sufficiency of the opposing papers", in the absence of admissible evidence sufficient to preclude any material issue of fact, summary judgment is unavailable (Ayotte v Gervasio, 81 NY2d 1062, 1063, quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324).

A bailment exists when property is delivered from one person (the bailor) to another (the bailee) "for a particular purpose under the express or implied contract with the understanding that it shall be redelivered to the person delivering it, or kept until he reclaims it after fulfillment of the purpose for which it was delivered" (9 NY Jur 2d, Bailments and Chattel Leases, ¶ 1, p 9).
A cause of action for bailment accrues "when the bailor demands the property and the bailee refuses to deliver it" (Heede Hoist and Machine Co., Inc. v Bayview Towers Apartments, Inc., 74 AD2d 598). If the property is not returned or, where a demand is required, the bailee fails to return it upon demand, the bailor has established a prima facie case based on the presumption of negligence (9 NY Jur 2d, Bailments and Chattel Leases, ¶ 147, pp 177-178). The bailee must then rebut that presumption, if possible, by showing that the loss was due to circumstances not within his control or that it was damaged without his fault (id., ¶ 149, p 181; Singer Co. v Stott & Davis Motor Express, 79 AD2d 227).
Claimant's motion for summary judgment is granted only as to the issue of liability for the typewriter as the Defendant has conceded responsibility for the damage to said item,
(Resnick Affirmation, ¶ 6)
. However, Claimant has failed to set forth a prima facie case as to his entitlement to damages regarding the typewriter.
To award compensation for the typewriter, the Court must determine the fair market value of the missing or damaged property, which includes consideration of depreciation (Schaffner v Pierce, 75 Misc 2d 21, 24).
A review of Claimant's submission reveals differing assessments of its condition (Claim, Exhibit A, [ good]; Claim, Exhibit E, [excellent]) as well as an indication that repairs were made to it. These issues raise material questions of fact which will influence the Court's determination of fair market value at the time of loss and therefore preclude summary judgment.

Turning to the Claimant's gold cross and chain, the undisputed facts are that the items were taken from Claimant's possession upon his arrival at Eastern Correctional Facility and they were not returned to him when demanded, this satisfies Claimant's burden of establishing a prima facie case for a bailment, thereby shifting the burden to the Defendant to raise a triable issue of fact to preclude granting of the summary judgment motion.

In response, Defendant has asserted that the cross and chain could not have been returned as these items were contraband. Support for that assertion is found in both Department of Correctional Services' regulations and its investigation into the underlying administrative claim. The investigation of the administrative claim found the cross and chain to be different from the photographed items on Claimant's "permit"[1] (Resnick Affirmation, Exhibits C and D, respectively; Ventimiglia Affidavit, ¶ 15 ; Exhibit F). As contraband, Claimant would not be entitled to its return, thereby defeating the bailment claim as presented.[2] Claimant in his moving papers, and in anticipation of that defense, has asserted that he "sought the permits necessary to prove his receipt of the chain and 1998 via proper DOCS channels" (Ventimiglia Affidavit, ¶ 15) and was advised that the permits were not in his file (Ventimiglia Affidavit, ¶ 15 ; Exhibit I). The evidence submitted on this motion clearly establishes that a material question of fact exists, namely were these items properly possessed by Claimant (see, Patterson v State of New York, [Ct Cl, Claim No.94538, Mignano, J.] September 26, 2000, UID#2000-029-020)[3].

In light of this finding, the Court does not reach the question of value of the cross and chain, and were it to do so, the Claimant has failed, just as with the typewriter, to establish a basis for the Court to determine its value.

Accordingly, claimant's motion is granted as to liability for the typewriter, and in all other respects is denied.

The parties are directed to advise the Court in writing, within twenty (20) days of the date this decision is filed with the Clerk, what discovery, if any, is still outstanding.

Let interlocutory judgment be entered accordingly.

June 5, 2001
Albany , New York

Judge of the Court of Claims

[1] DOCS policy allows inmates to possess certain items, subject to limitations, such as quantity and value, provided a "permit" is obtained for the item(s) (see, Resnick Affirmation, Exhibit A).
[2] In the Court's view, there is also a question of fact whether the cross and chain were confiscated or lost by the Defendant. In view of DOCS Directive 4910 (Resnick Affirmation, Exhibit C) Defendant had a duty with regard to confiscated property which it may also have breached in this case.
[3] Decisions of the Court of Claims are available in a searchable database on the internet, free of charge. Access may be obtained through the Court of Claims website at