New York State Court of Claims

New York State Court of Claims

TRACY v. THE STATE OF NEW YORK, #2004-031-014, Claim No. 107254, Motion No. M-67083


Synopsis


Case Information

UID:
2004-031-014
Claimant(s):
ALLAN TRACY
Claimant short name:
TRACY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107254
Motion number(s):
M-67083
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
TRACY ALLEN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: EDWARD F. MCARDLE, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 11, 2004
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 summary judgment:
1. Claimant's Notice of Motion, filed July 10, 2003;
2. Claimant's Affidavit, sworn to July 2, 2003, with attached exhibits;
3. Affidavit of Lawrence M. Cheney, sworn to August 25, 2003, with attached exhibits;
4. Filed documents: Claim and Answer. The claim in this matter, filed on January 29, 2003, alleges that, on February 11, 2002, Claimant was removed from his cell and taken to the Special Housing Unit ("SHU"). When he was allowed to view his property after it had been packed and removed from his cell, Claimant determined that several items were missing. He alleges that Defendant negligently failed to secure his personal property and seeks $250.00 in damages.

With this motion Claimant seeks summary judgement, asserting that no question of fact exists concerning Defendant's liability for the loss of his property. 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 $250.00.

Defendant opposes Claimant's motion, arguing that there is a question of fact as to what, if any, of Claimant's property was lost, and also as to the value of any such missing property. Specifically, Defendant alleges that Claimant was, in fact, taken to SHU and his property packed up on February 10, not February 18, 2002. Defendant points out that the most recent I-64 (property inventory sheet) prior to February 10, 2002 was September 27, 2001. According to Defendant, Claimant may have himself disposed of some of the allegedly missing property during the almost five intervening months.

In any application for summary judgment, the moving party bears a heavy burden of 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 negligence on Defendant's part. I also find that an issue of fact exists as to the value of Claimant's allegedly missing property.

Based upon the foregoing it is:

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

February 11, 2004
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims