New York State Court of Claims

New York State Court of Claims

LEWIS v. THE STATE OF NEW YORK, #2006-028-515, Claim No. 111198, Motion No. M-70710


Synopsis



Case Information

UID:
2006-028-515
Claimant(s):
JAMES LEWIS
Claimant short name:
LEWIS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111198
Motion number(s):
M-70710
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
JAMES LEWIS, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. Arnold, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 3, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were considered on Claimant's motion for summary judgment in his favor:


1. Notice of Motion and Supporting Affidavit of James Lewis, pro se


2. Affirmation in Opposition of Kathleen M. Arnold, AAG


Filed papers: Claim; Answer


This is a bailment claim that accrued in May 2005, when Claimant discovered that some items that had been listed when his property was inventoried at Coxsackie Correctional Facility were missing when he reviewed the list that was created at Southport Correctional Facility. He initiated an institutional claim on May 25, 2005, which was disapproved initially and on appeal, in a decision issued June 27, 2005.

Claimant's motion for summary judgment is based on documents that were attached to the claim: a copy of the Personal Property Transferred form (I-64) that was completed at Coxsackie CF; the I-64 completed at Southport CF; and a copy of Directive No. 2733 of the Department of Correctional Services (DOCS).[1] The Directive provides, in relevant part, that ownership of an item of property can be proved by, among other things, "Personal Property Transferred" forms and related records.

A cause of action for bailment requires proof of ownership of the property in question and, in addition, proof that it was in the Defendant's possession at the time of loss, that Defendant had an obligation to return it to him, and that it was not returned. If such a prima facie case is proven, Defendant has the right to rebut the presumption of negligence by showing that the loss was
due to circumstances not within its control or that it was damaged without its fault (Heede Hoist and Machine Co., Inc. v Bayview Towers Apartments, Inc., 74 AD2d 598 [2d Dept 1980]).
In this claim, proof of the other elements of the cause of action will depend in large part on the Court's assessment of Claimant's credibility, and any award of damages would have to depend on proof of the value of the items.

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 [1985]), Such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and in the absence of admissible evidence sufficient to preclude any material issue of fact, summary judgment is unavailable to either party (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In addition, summary judgment is generally inappropriate where questions of credibility are presented, as they typically must be resolved at trial by the finder of fact (Orloski v McCarthy, 274 AD2d 633, 635 [3d Dept 2000]).

Claimant has failed to prove a prima facie case, and, because determination of certain key facts will rest on an assessment of credibility, summary judgment is inappropriate in this instance. Claimant's motion is DENIED.

.


February 3, 2006
Albany, New York
HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The Court will accept Claimant's statement that there are items on the earlier form that are not listed on the later one.