New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2003-031-064, Claim No. 105805, Motion No. M-66709


Synopsis


Claimant's motion for partial summary judgment is denied.

Case Information

UID:
2003-031-064
Claimant(s):
EDWIN LAMAGE
Claimant short name:
LAMAGE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105805
Motion number(s):
M-66709
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
EDWIN LAMAGE, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 12, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on motion by Claimant for partial summary judgment:
1. Claimant's Notice of Motion, filed April 18, 2003;
2. Claimant's Affidavit, sworn to April 13, 2003, with attached exhibits;
3. Affirmation of Thomas G. Ramsay, Esq., dated May 2, 2003, with attached exhibit;
4. Filed documents: Claim and Answer. The claim in this matter alleges three different and apparently unrelated causes of action. First, that Defendant was negligent in failing to protect Claimant from an assault by another inmate on April 16, 2001. Second, that Claimant was illegally confined for seven days from January 7, 2001 through January 13, 2001. Third, Claimant alleges that Defendant negligently failed to secure his cell while he was at programming on September 27, 2001, and that many articles of personal property were subsequently stolen.

With this motion, Claimant seeks summary judgment relating to his third cause of action for loss of personal property on or about September 27, 2001. Claimant asserts that Defendant is responsible for the loss of his property for negligently failing to secure his cell. He has attached certain invoices and receipts to demonstrate the value of this missing property and asks that I grant judgment against Defendant in the amount of $135.36.

Defendant opposes Claimant's motion, pointing out that there is a question of fact as to what, if any, of Claimant's property was lost, and also as to who is responsible for Claimant's loss of property. Defendant argues that there was a fire in Claimant's cell the day after the alleged loss, September 28, 2001, and that this fire was caused by Claimant. Claimant apparently did not report any property stolen until after the September 28, 2001 fire. It is Defendant's assertion that some or all of the property that Claimant alleges was stolen on September 27, 2001, was in fact lost in the fire that Claimant set on September 28, 2001.

In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Claimant has failed to meet this burden. I find that questions of fact exist as to what property was lost by Claimant and whether it was lost as a result of the cell fire which occurred on September 28, 2001, or whether it was stolen, as Claimant alleges, after his cell was improperly left open on September 27, 2001.

Based upon the foregoing it is:

ORDERED, that Claimant's motion for summary judgment is denied.

August 12, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims