New York State Court of Claims

New York State Court of Claims

LINER v. THE STATE OF NEW YORK, #2008-015-108, Claim No. 113778, Motion No. M-75530


Synopsis


Claimant's motion for partial summary judgment was denied for failure to establish his prima facie entitlement thereto.

Case Information

UID:
2008-015-108
Claimant(s):
JOSHUA LINER
Claimant short name:
LINER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113778
Motion number(s):
M-75530
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Joshua Liner, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 12, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves for partial summary judgment on his causes of action for bailment. By Decision and Order dated September 18, 2007 Judge Jeremiah J. Moriarty III dismissed claimant's first cause of action as untimely, leaving claimant's second cause of action for bailment arising out of the loss of property on February 5, 2007 and the third cause of action for ministerial negligence and bailment arising out of various incidents occurring from February 2007 through March 2007 at Great Meadow Correctional Facility. The third cause of action included the allegation that a sweatshirt was taken by G. Wennsworth on March 21, 2007. 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 Medical Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]).

By moving for summary judgment without submitting all of the pleadings as required by CPLR 3212 (b) the claimant "failed to satisfy [his] initial burden on the motion, thereby obviating any issue as to the sufficiency of the papers submitted in opposition thereto" (Welton v Drobnicki, 298 AD2d 757,757 [2002], citing Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; see also Senor v State of New York, 23 AD3d 851 [2005]). Moreover, claimant failed to establish that property was delivered to the possession of the defendant and not returned (see Ramirez v City of White Plains, 35 AD3d 698 [2006]; Pollard v State of New York, 173 AD2d 906 [1991]; 7 NYCRR part 1700) much less the fair market value of the allegedly missing property (Phillips v Catania, 155 AD2d 866 [1989]).

Based on the foregoing, claimant's motion for partial summary judgment is denied.



December 12, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion for summary judgment filed September 15, 2008;
  2. Affidavit of Joshua Liner sworn to August 26, 2008 with exhibits;
  3. Affirmation of Paul F. Cagino dated October 14, 2008;
  4. Affidavit of Joshua Liner sworn to October 21, 2008.