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
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
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,
, 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 ), Such showing must be made "by
producing evidentiary proof in admissible form" (Zuckerman v City of New
York, 49 NY2d 557, 562 ), 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
, quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). 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.