New York State Court of Claims

New York State Court of Claims

GLOSTER v. THE STATE OF NEW YORK, #2003-015-352, Claim No. 106900, Motion No. M-66940


Court denied pro se inmate's motion for summary judgment since the submission of a DOCS disbursement fro signed by claimant was sufficiently probative to raise a question of fact as to whether claimant's personal property was redelivered to the U.S. Postal Service for re-delivery thus vitiating defendant's liability for the loss of such property.

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:
Jerry Gloster, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 26, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for summary judgment on the issue of liability is denied. The claim filed with the Court's permission as a late claim on November 8, 2002 seeks to recover $1,149.19 for the loss of or damage to claimant's personal property by the Department of Correctional Services (DOCS). The loss and/or damage allegedly occurred during the course of claimant's transfer from Great Meadow Correctional Facility's Special Housing Unit in Comstock, New York to the Special Housing Unit of Upstate Correctional Facility in Malone, New York on November 14, 1999 and his subsequent transfer from Upstate to Elmira Correctional Facility, Elmira, New York on February 28, 2000. Claimant filed an inmate personal property claim pursuant to 7 NYCRR Part 1700 on March 20, 2000. Thereafter he rejected an offer of settlement and appealed the matter to DOCS central office pursuant to 7 NYCRR § 1700.3 (b) (2). Claimant's appeal was denied by Senior Budget Analyst Carol T. Caban by letter dated August 2, 2000 and claimant filed a claim in this Court which was dismissed as untimely by the Hon. Thomas J. McNamara in a decision and order dated June 5, 2002. Claimant then moved for an order granting leave to file a late claim pursuant to Court of Claims Act § 10 (6). That motion was granted by decision and order dated October 21, 2002. Claimant filed his claim on November 8, 2002 and now moves for summary judgment on the issue of liability.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, 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 demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 294 AD2d 653). The rule requiring the tender of proof in admissible form is somewhat more flexible for the party opposing a motion for summary judgment where he or she sets forth a valid excuse for the failure to submit admissible proof or the proof "is of sufficient probative force to defeat a motion for summary judgment" (Walker v Golub Corp., 276 AD2d 955, 957; see also, Davis v Golub Corp., 286 AD2d 821).

Claimant supported his motion by two affidavits in which he related various assignments to special housing units and facility to facility transfers which required him to bag his property, including a transfer from Upstate Correctional Facility in Malone to Elmira Correctional Facility. Subsequent to his arrival at Elmira claimant discovered that numerous items of personal property were not returned to him upon request. He pursued his administrative remedy through an appeal to the central office and rejected DOCS offer of settlement of the administrative claim. Claimant alleges that a bailment was created and that DOCS failure to return the property entrusted to its care creates a legal presumption that his loss occurred through the defendant's negligence.

Defendant opposed the motion by affirmation of defense counsel; a copy of an undated personal property inventory form and other similar inventories dated 11/21/99, 11/8/99, undated, 11/14/99, 12/10/99, 2/16/2000; a photocopy of a disbursement or refund request signed by Jerry Gloster and dated February 22, 2000 and a copy of the defendant's answer verified on December 16, 2002. In her affirmation in opposition to the motion defense counsel recites claimant's allegations regarding his losses then asserts but a single argument related to liability. In paragraph 9 of her affirmation counsel alleges that claimant's disbursement form (Exhibit B) "indicates that five bags of property were sent out, insured, by U.S. Postal Service at movant's own expense to Elmira CF" and that the bailment "was transferred to the postal service who failed to return [claimant's] property, and the State of New York is no longer liable for any ensuing damages."

A bailment is created when personal property is delivered into the possession of another with the understanding, either express or implied, that the property will be redelivered to the owner or otherwise dealt with according to his direction (Mays v New York, N.H. & H.R. Co., 197 Misc 1062; 2A Warren's Negligence § 14.01[1]).

Proof that bailed property was received by the bailor who thereafter failed to return it establishes a prima facie case of negligence and gives rise to a presumption of liability (Maisel v Gruner & Jahr USA, 89 AD2d 503; Damast v New Concepts in Jewelry, 86 AD2d 886) which may be overcome upon proof that the loss was not attributable to the bailee's negligence (Singer Co. v Stott & Davis Motor Express, 79 AD2d 227). Evidence showing delivery of the bailed property to a third party in pursuance of the purposes of the bailment is in this regard sufficient (Chankalian v Powers, 89 App Div 395; 9 NY Jur 2d Bailments and Chattel Leases §§ 54, 113).

Claimant established a prima facie entitlement to judgment as a matter of law through his sworn affidavit alleging that he transferred possession of his personal property to the defendant with the understanding that the goods would be returned to him upon completion of his various transfers and that the goods were not so returned.

In response, the defendant has submitted an uncertified "Disbursement or Refund Request" (Exhibit B) form dated February 22, 2000 which is signed by the claimant and relates that $42.77 was deducted from claimant's inmate account. The following handwritten description appears on the face of the document: "Postage & Ins. 5 Bags property mail out (transfer)." The record is not certified nor is there an affidavit establishing its authenticity (CPLR 4518 [c]). The document is therefore hearsay and not generally sufficient to successfully oppose a motion for summary judgment. Furthermore, the defendant has failed to proffer a valid excuse for neglecting to secure either a certification or an affidavit demonstrating the genuineness of a record of its own agency. The Court finds, however, that the disbursement form is sufficiently probative to justify its consideration in opposition to the motion. The document is signed by the claimant, bears a date generally contemporaneous to the claimant's transfer from Upstate Correctional Facility to Elmira Correctional Facility and appears to reflect the deduction of monies from claimant's account for the purpose of mailing five bags of property to Elmira. As such, the disbursement form raises material issues of fact as to whether the bailment contemplated transfer of the bailed property to a third person for re-delivery to the claimant and whether the property was actually delivered to the authorized third party.

Accordingly, claimant's motion for summary judgment is denied.

September 26, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 5, 2003;
  2. Affidavit of Jerry Gloster sworn to June 5, 2003 with exhibit;
  3. Affirmation of Kathleen M. Resnick dated June 24, 2003 with exhibits;
  4. Affidavit of Jerry Gloster sworn to July 1, 2003.