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,
, ¶ 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"
, Exhibits C and D, respectively; Ventimiglia
, ¶ 15 ; Exhibit F). As contraband, Claimant would not be
entitled to its return, thereby defeating the bailment claim as
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 cross...in 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)
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.