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 ; 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 ;
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
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.