New York State Court of Claims

New York State Court of Claims

KOEHL v. THE STATE OF NEW YORK, #2009-015-163, Claim No. 113877, Motion No. M-76161


Pro se inmate's motion for summary judgment on claim alleging the intentional destruction of certain of his personal property during course of cell search was 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:
Edward Koehl, 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:
May 4, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate proceeding pro se, moves pursuant to CPLR 3212 for summary judgment on his claim alleging the destruction of certain items of personal property during the course of a cell search at Great Meadow Correctional Facility. The claim alleges in pertinent part the following:

"On 2/13/07, Officer Molisani placed Claimant in the shower at the end of the Company (E-1), stating that he is searching his cell (E1-34). This is contrary to DOCS and facility policy because the shower is out of view of Claimant's cell. . . When Claimant was permitted to return to his cell he discovered that his cell and all his personal property were in total disarray. . . Claimant immediately notice that the 3 boxes of Chinese green tea that his family sent him and his protein powder were opened and laid all over the cell. A majority of the tea bags were stepped on. Further, Claimant noticed that his extra set of dentures were either taken out, or fell out of their protective container and were on the floor. The bottom denture that claimant paid $175.00 for was broken in half. Upon closer inspection Claimant also discovered that his plastic typewriting printwheel and tube of denture adhesive were on the floor and damaged. Finally, when Claimant completed the cleaning of his cell he was unable to find his spanish lesson tape."[1]

It is well established that " 'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue' " (Rotuba Extruders, Inc.v Ceppos, 46 NY2d 223, 231 [1978] [citation omitted]). "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. Center, 64 NY2d 851, 853 [1985]). Once the movant has made this showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986] citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

An implied bailment is created when one comes into the lawful possession of property of another other than by a mutual contract of bailment (Foulke v New York Consol. R. Co., 228 NY 269 [1920]; Mack v Davidson, 55 AD2d 1027 [1977]). The determination as to whether a bailment is created turns on whether there is a relinquishment of exclusive possession and control over the property (Alston v State of New York, 9 Misc 3d 1126 [A] [Ct Cl 2005]; see also Gagne v State of New York, 14 Misc 3d 1214 [A] [2006]; Matter of Terranova v State of New York, 111 Misc 2d 1089 [1982]). Here, the claimant's allegations, if true, give rise to an implied bailment as he relinquished exclusive possession and control over the contents of his cell when prison authorities placed him in the shower in order to search his cell.

In order to establish his prima facie entitlement to judgment as a matter of law, the claimant was required to come forth with admissible evidence that the "property was last in the control of the department or its agents, and the department fail[ed] without good explanation to deliver it . . . to the inmate . . . in the same condition as when received by the department. . . (7 NYCRR § 1700.7 [b]; see also Ramirez v City of White Plains, 35 AD3d 698 [2006]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 [1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1977]; see also Claflin v Meyer, 75 NY 260 [1878]). In support of his motion, claimant submitted no evidence beyond his own unsubstantiated allegations to establish both that he owned the property which he claims was damaged during the defendant's search of his cell and its fair market value (see Edwards v State of New York, 23 AD3d 710 [2005], appeal dismissed 6 NY3d 772 [2006]). Moreover, defendant met its burden of coming forward with evidence that it was not responsible for the loss or destruction of the property (see Feuer Hide & Skin Corp. v Kilmer, supra; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049 [1981]; Weinberg v D-M Rest. Corp., supra).

Based on the foregoing, claimant's motion is denied.

May 4, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 20, 2009;
  2. Affidavit of Edward Koehl sworn to January 20, 2009 with exhibits;
  3. Affirmation of Paul F. Cagino dated February 6, 2009 with exhibits.

[1]. The quoted material was taken directly from the claim without correction.