Claimant, an inmate proceeding pro se, moves for summary judgment on
his bailment claim. Claimant alleges that on April 12, 2005 investigators from
the Albany County Sheriff's Department and the Inspector General's office
entered his cell in the honor block housing unit at Great Meadow Correctional
Facility and confiscated photographs, claimant's general equivalency diploma
(GED) and transcript and his paralegal certificate and grade transcripts.
Damages claimed include the replacement value of the photographs, a damaged
photo album, the costs of replacing claimant's GED and paralegal certificate as
well as mental duress, physical pain and the costs and disbursements incurred
in prosecuting the claim.
As the party seeking summary judgment, claimant must make a prima facie showing
of entitlement to judgment as a matter of law, by offering sufficient evidence
to eliminate any material issues of fact from the case (Cox v Kingsboro Med.
Group, 88 NY2d 904 ; Winegrad v New York Univ. Med. Center, 64
NY2d 851 ; Zuckerman v City of New York, 49 NY2d 557 ).
Failure to make a prima facie showing requires denial of the motion for summary
judgment regardless of the sufficiency of the opposing papers (Winegrad v New
York Univ. Med. Center, supra).
Here, claimant failed to establish his prima facie entitlement to summary
judgment. The State as a bailee of an inmate's personal property owes a
common-law duty to secure the property in its possession (Pollard v State of
New York, 173 AD2d 906 ; see also 7 NYCRR part 1700). A
rebuttable presumption of negligence arises where it is established that the
property was delivered to the defendant with the understanding that it would be
returned, and that the defendant failed to return the property or returned it in
a damaged condition (7 NYCRR § 1700.7 [b]; Ramirez v City of White
Plains, 35 AD3d 698 ; Feuer Hide & Skin Corp. v Kilmer, 81
AD2d 948 ; Weinberg v D-M Rest. Corp., 60 AD2d 550 ; see
also Claflin v Meyer, 75 NY 260 ). The claimant must also
establish compliance with the requirement that he exhaust the Department of
Correctional Services inmate personal property claims administrative remedy
(Court of Claims Act § 10 ; Williams v State of New York, 38 AD3d
646 ). Thereafter the burden of coming forward with evidence explaining
the loss or destruction of the property is upon the defendant (Feuer Hide
& Skin Corp. v Kilmer, supra; Board of Educ. of Ellenville
Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049 ;
Weinberg v D-M Rest. Corp., supra ).
Claimant failed to establish in support of his motion the fair market value of
the property which he alleges was damaged or confiscated and not returned.
Although an interdepartmental communication dated April 21, 2005 indicates that
"contraband" items and photographs were removed from the claimant's cell,
another interdepartmental communication dated August 11, 2005 reflects the
return of claimant's property with the exception of certain photographs.
Photographs have no fair market value upon which recovery in a bailment case may
be based (West v State of New York, Ct Cl, August 12, 2002 [Claim No.
100642, UID #2002-015-558] Collins, J., unreported) and the claimant failed to
otherwise establish the duplication cost of the confiscated photographs or the
fair market value of the photo album he claims was damaged (see
Phillips v Catania, 155 AD2d 866 ).
Lastly, claimant failed to establish, as was his burden, that he exhausted his
administrative remedies (Williams v State of New York, supra).
Damages for emotional distress are not recoverable in a claim for property
damage or loss (Murray v 600 E. 21st Street , LLC, 55 AD3d 805 ;
Tatta v State of New York, 20 AD3d 825 ).
Based on the foregoing, claimant's motion is denied.