New York State Court of Claims

New York State Court of Claims

KAIRIS v. THE STATE OF NEW YORK, #2007-041-009, Claim No. 111697, Motion No. M-72831


Claimant’s motion for summary judgment in lost property claim is granted to the extent defendant admitted liability for loss of several items set forth in claim and is otherwise denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 9, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for summary judgment in this lost personal property claim brought pursuant to Court of Claims Act § 10 (9).

Claimant alleges that he was transferred from Clinton Correctional Facility (Clinton) to Upstate Correctional Facility (Upstate) on September 2, 2004 and that his personal property was inventoried and itemized on an I-64 form prior to his departure from Clinton. Claimant further alleges that after his arrival at Upstate, his personal property was again inventoried and itemized, on September 7, 2004, on an I-64 form. Claimant states that he realized that he was missing personal property which “amounted to approximately Five Hundred Ninety Three dollars and Sixty-Eight cents.”
A lost property claim was filed at Upstate, pursuant to the mandatory administrative remedy provided by 7 NYCRR Part 1700, entitled “Inmate Personal Property Claims.” At the conclusion of the initial administrative review the claim was rejected because the “only items we can verify as missing is 2 sweatshirts and 1 towel.” On administrative appeal, the claim was approved in the amount of $30.00 for the “same reasons” as set forth in the initial review.

A subsequent exchange of memos between claimant and defendant shows that the $30.00 offer was intended to fully compensate claimant for all the property described in the administrative claim rather than serve as compensation for only the “2 sweatshirts and 1 towel” which were admittedly lost. Claimant rejected the offer and this claim ensued.

“A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment” (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).

Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).

Summary judgment is "a drastic remedy" (Lebanon Valley Landscaping, Inc. v Town of Moriah, 258 AD2d 732, 733 [3d Dept 1999]). It “is the procedural equivalent of a trial and should be granted only when it has been established that there is no triable issue of material fact” (Harris v State of New York, 187 Misc 2d 512, 517 [Ct Cl 2001]; see Paulin v Needham, 28 AD3d 531 [2d Dept 2006]).

The Court “must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact” (Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).

The court's role on a motion for summary judgment is issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Matter of Hannah UU, 300 AD2d 942, 943 [3d Dept 2002]; Schaufler v Mengel, Metzger, Barr & Company, LLP, 296 AD2d 742, 743 [3d Dept 2002]) and where a genuine issue of fact exists, the summary judgment motion must be denied (Fleet Bank v Tiger Racquet Fitness and Exercise Center, Inc., 255 AD2d 793, 794 [3d Dept 1998]).

“To establish a prima facie case of negligence in a bailment transaction, claimant must demonstrate that his property was deposited with the defendant and the defendant failed to return it . . . . Once claimant meets his burden, there is a rebuttable presumption that the defendant is negligently responsible for the loss, and defendant must come forward with proof explaining the loss . . . . The measure of recovery for the loss of bailed property is fair market value, which can be established by evidence of the original purchase price less a reasonable rate of depreciation” (Amaker v State of New York, [Ct Cl, Hard, J., UID #2006-032-511]; see Claflin v Meyer, 75 NY 260 [1878]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]; Miceli v State of New York, 179 Misc 2d 424, 428-429 [Ct Cl 1998]).

Claimant’s affidavit, together with the annexed documentary evidence, including the I-64 property inventories, establish claimant’s prima facie case.

The defendant admitted in the initial administrative review that “items we can verify as missing is 2 sweatshirts and 1 towel.” That admission was adopted by the facility superintendent’s representative in the administrative appeal. Claimant is therefore entitled to summary judgment as to defendant’s liability for the loss of those items. Although an offer of $30.00 was made to claimant, it is clear from the record that this offer was intended to fully settle the entire administrative claim and was not intended as an admission of the value of the “2 sweatshirts and 1 towel.”

Contrary to claimant’s affidavit, defendant has not “conceded the issue of liability” for all of the personal property allegedly lost, leaving only “the value amount . . . to reimburse me for my loss.” Defendant conceded nothing more than the loss of the three items identified in the facility’s initial review.

The Court finds that claimant is entitled to partial summary judgment as to defendant’s liability for the loss of “2 sweatshirts and 1 towel.” Triable issues of fact exist as to the fair market value of the admittedly lost items.
The documentary evidence shows that triable issues of fact also exist as to whether defendant is liable for the other items of personal property allegedly lost, set forth in the claim, and if so, the fair market value of those items.

Accordingly, the claimant’s motion is granted to the extent of granting him partial summary judgment as to defendant’s liability for the loss of “2 sweatshirts and 1 towel” and is otherwise denied.

March 9, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Claimant’s Notice of Motion, filed January 16, 2007;
  1. Affidavit of claimant, sworn to December 19, 2006, with annexed exhibits;
  1. Affirmation of Paul F. Cagino, affirmed on February 12, 2007 and filed on February 13, 2007, with annexed exhibits.