New York State Court of Claims

New York State Court of Claims

HENRY v. THE STATE OF NEW YORK, #2005-019-530, Claim No. 98816, Motion Nos. M-69744, M-69820


Synopsis


State's motion for summary judgment dismissing bailment claim is denied; claimant's motion for summary judgment on bailment cause of action is denied.

Case Information

UID:
2005-019-530
Claimant(s):
BOBBY HENRY
Claimant short name:
HENRY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98816
Motion number(s):
M-69744, M-69820
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
BOBBY HENRY, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 19, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for summary judgment (M-69744) on his bailment claim. The State of New York (hereinafter "State") opposes the motion and filed a separate motion (M-69820) for summary judgment dismissing this claim.[1] Claimant submitted a reply affidavit entitled "Claimant's Response to Defendant's Affirmation in Opposition To Claimant's Motion For Summary Judgment" which the court deems as claimant's opposition to the State's motion for summary judgment as well. The facts as outlined by claimant in his claim and supporting papers are undisputed. On November 7, 1997, claimant was transferred from Elmira Correctional Facility ("Elmira") to Cayuga Correctional Facility ("Cayuga"). At that time, claimant was able to transport with him four out of his five bags of personal property. With respect to the fifth bag, claimant was advised that the fifth bag would be mailed to him at Cayuga through the United States Postal Service if he paid for postage. On November 20, 1997, claimant forwarded to Elmira the necessary postage, but never received his fifth bag of personal property and inquired of Elmira officials about the location of the same. Approximately three months later, claimant received a memo from Captain Richards from Elmira dated February 23, 1998 stating that claimant's property had been located in Elmira and mailed to him in Cayuga on February 19, 1998. Claimant still did not receive his property. Next, claimant filed a lost mail report with the United States Postal Service which advised him on April 14, 1998 that his property could not be located. Finally, on May 5, 1998, claimant filed a grievance with Cayuga. On June 8, 1998, his grievance was disapproved on the grounds the package was never received by Cayuga from the United States Postal Service. The property at issue includes various books and food items.


Claimant served a notice of intention on the attorney general on June 24, 1998 by certified mail, return receipt requested. The claim itself was served on the attorney general on August 6, 1998 by certified mail, return receipt requested, and filed with the clerk of the court on August 17, 1998. The State filed a verified answer on September 11, 1998.

  1. State's motion for summary judgment
To prove a bailment cause of action, claimant must demonstrate that his property was deposited with the State and that the State refused to return it after its return was demanded. (Weinberg v D-M Rest. Corp., 60 AD2d 550; Heede Hoist & Mach. Co. v Bayview Towers Apts., 74 AD2d 598). It is the date on which the State refuses to return the property that a bailment claim is deemed to have accrued. Here, the State argues that the service of the notice of intention and filing and service of the claim were untimely since they were filed more than 90 days after accrual.[2] More specifically, the State argues that this claim accrued on February 19, 1998, which is the date Elmira officials contend that claimant's property was actually mailed to him at Cayuga via the United States Postal Service. The court disagrees.


In this court's view, Captain Richards' memo to claimant dated February 23, 1998 (indicating that claimant's property had been mailed out on February 19, 1998) merely denied possession of claimant's property by Elmira officials, but not necessarily Cayuga officials. Cayuga officials did not deny possession of claimant's property until the denial of claimant's grievance on June 8, 1998 stating "[p]ackage never received at Cayuga C.F. from Post Office." (Claimant's Ex. 2). As such, the court finds that this claim accrued on June 8, 1998, which is the first time Cayuga officials denied possession of claimant's personal property and blamed the post office and, as such, this claim was timely filed and served. Accordingly, the State's motion for dismissal is denied.

  1. Claimant's motion for summary judgment
Turning now to claimant's motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). Here, there are clearly questions of fact about whether the State caused or contributed to this loss by failing to exercise reasonable care in safeguarding claimant's property or whether the responsible party was the United States Postal Service. (Bonds v State of New York, Ct Cl., June 28, 2000, Collins, J., Claim No. 101992, Motion No. M-61562 [UID No. 2000-015-046]).[3] As such, there is no evidence in this record establishing claimant's right to summary judgment as a matter of law.


Finally, it is noted that claimant is not currently in State custody, but rather being held in Monroe County jail. As such, the court will not schedule this matter for trial until such time as claimant is in State custody and/or is released. Claimant is reminded that "[c]hanges in the post office address or telephone number of any...pro se claimant shall be communicated in writing to the clerk within ten days thereof." (22 NYCRR 206.6 [f]).


Accordingly, in light of the foregoing, it is ORDERED that State's motion for summary judgment, Motion No. M-69820, is DENIED; and claimant's motion for summary judgment, Motion No. M-69744, is DENIED as well.


April 19, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with these motions:
  1. Claim, filed August 17, 1998.
  2. Verified Answer, filed September 11, 1998.
  3. Notice of Motion No. M-69744, dated February 11, 2005, and filed February 14, 2005.
  4. Affirmation of Bobby Henry, in support of Motion No. M-69744, sworn to February 8, 2005, with attached exhibits.
  5. Affirmation of Geoffrey B. Rossi, AAG, in opposition to Motion No. M-69744, dated March 2, 2005, and filed March 4, 2005, with attached exhibits.
  6. Notice of Motion No. M-69820, dated March 2, 2005, and filed March 4, 2005.
  7. Affirmation of Geoffrey B. Rossi, AAG, in support of Motion No. M-69820, dated March 2, 2005, with attached exhibits.
  8. "Claimant's Response to Defendant's Affirmation In Opposition To Claimant's Motion For Summary Judgment", of Bobby Henry, sworn to March 15, 2005, and filed March 21, 2005, with attachment.


[1]The court will refer to the State's application as a motion, not a cross-motion, since the State's "Notice of Motion" does not comply with CPLR 2215 which sets forth the requirements for cross-motions.
[2]The timeliness of this claim pre-dates the effective date of CCA 10 (9). Prior to December 7, 1999, an inmate seeking to bring a claim sounding in bailment was governed by CCA 10 (3) and 11, and was required to serve either a notice of intention to file a claim or file and serve a claim within 90 days of accrual of his cause of action. The law changed effective December 7, 1999, and now requires, among other things, inmates to exhaust their administrative remedies before serving and filing a claim sounding in bailment. (CCA 10 [9]; Stroud v State of New York,184 Misc 2d 876, 877). As such, here claimant was not required to exhaust his administrative remedies before commencing suit.
[3]Selected unreported decisions from the Court of Claims are available via the Internet at