Claimant's motion for summary judgment on bailment claim was denied.
|Claimant short name:||CORRENTI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Anthony Correnti, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Thomas Monjeau, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 23, 2009|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, moves for summary judgment pursuant to CPLR 3212 on his claim alleging the defendant was negligent in allowing the theft of certain items of personal property from his locked cell. Claimant has withdrawn his cause of action for intentional infliction of emotional distress.
According to the allegations in the claim, the claimant's troubles began when Correction Officer Greg Rosati denied his request to be placed on the "phone list" on January 25, 2007. Correction Officer Rosati allegedly screamed in response to the claimant's request that "[r]apists don't get to use the phone" and that "you [claimant] raped 12-year-old girls and don't deserve to live" (Claim, ¶ 4). The next morning, January 26, 2007, upon claimant's return to his cell from his morning program, he discovered that his headphones were missing. More property was allegedly discovered missing from the claimant's cell upon his return from his morning program on January 29, 2007 including a hot pot, Sony Walkman, blanket, cassette tapes and 50 stamps. Once again on January 31, 2007, upon the claimant's return to his cell from his morning program, he discovered that his typewriter and television were missing.
Claimant filed an administrative claim relating only to the loss of his headphones, Sony Walkman, hot pot, typewriter and television on February 2, 2007. It does not appear that the claimant filed an administrative claim for the lost blanket, cassette tapes or stamps. The claim was administratively denied on March 15, 2007 with the notation that "Sgt Pray's investigation indicates inmate could have given his property away." The decision was affirmed on appeal on August 31, 2007 and the instant claim was filed on December 19, 2007.
Claimant asserts that the missing items of property could not have disappeared from his cell without the negligence and/or participation of one or more correction officers. Claimant alleges the following in his claim:
16. Claimant's cell was located less than 10 feet from the desk where a Correction Officer is stationed. During the 7:00 am to 3:00 pm shift, the regular officer at that desk is C.O. John Rizotti [sic].
17. The cells can only be opened by another Correction Officer (John Doe) who is stationed in a booth directly behind the officer's desk. The booth was approximately 15 feet from the Claimant's cell.
18. Whoever entered Claimant's cell and stole his property, had to have done so with the knowledge of two Correction Officers. It would have been impossible to enter the cell without Officer Doe opening the cell and Officer Rizotti [sic] seeing it.
In support of his motion for summary judgment claimant submitted, inter alia, defendant's responses to interrogatories, various receipts and a report (as redacted) prepared by the Inspector General's Office following an investigation of the claimant's allegations that certain property was taken from his cell with the knowledge and/or participation of Correction Officer John Rosati. Investigator Michael Smith concluded in the report that although the investigation disclosed various allegations of misconduct against Officer John Rosati, "no evidence was collected to support any of these allegations". Investigator Smith recommended in the report that the case be closed as unsubstantiated (claimant's Exhibit D).
In opposition to the claimant's motion, defendant submitted the affidavit of John Rosati (defendant's Exhibit A) who denies that he opened the claimant's cell and stole the claimant's property or allowed others to do so. Defendant also submitted the affidavit of Investigator Michael Smith who stated that "[b]ased upon the lack of any credible evidence of staff malfeasance, I concluded in said report that Claimant's allegations were unsubstantiated in their entirety" (defendant's Exhibit B, ¶ 3).
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 [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 ). 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 , citing Zuckerman v City of New York, 49 NY2d 557, 562 ).
In the Court's view, claimant failed to establish his entitlement to summary judgment. Analyzing this claim first under the standard applicable to a bailment, claimant must establish that the property was delivered to the defendant with the understanding that it would be returned and that it either was not returned or was returned in a damaged condition (Ramirez v City of White Plains, 35 AD3d 698 ; Pollard v State of New York, 173 AD2d 906 ; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 ; see also 7 NYCRR part 1700). Once established, such proof gives rise to a rebuttable presumption of negligence (id.). Thereafter the burden of coming forward with evidence establishing that the loss or destruction of the property was not its fault 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 ). Here, the circumstantial evidence submitted by the claimant fails to establish as a matter of law that his property was in the custody and control of the defendant at the time of the loss. While claimant established through the submission of his affidavit, personal property transfer forms, receipts and permits that a Smith Corona typewriter, Koss Headphones, Sony Walkman, six ribbons and stamps were received in Great Meadow Correctional Facility on December 4, 2006, he failed to establish that these items were in his cell on the dates in question or otherwise exclude with reasonable certainty any other explanation for their loss other than the culpable conduct of the defendant. In this regard defense counsel avers, and claimant admits in reply, that he had a bunkmate whose participation in the events cannot be ruled out. Thus, the first requirement for a bailment claim, delivery of the property to the defendant, has not been established.
Nor did claimant establish the defendant's negligence as a matter of law. While negligence may be proved circumstantially, and claimant need not "'positively exclude every other possible cause' of the [incident] but defendant's negligence. . . [his] proof must render those other causes sufficiently 'remote' or 'technical' to enable [the fact finder] to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence" (Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743,744 [citations omitted]; Gayle v City of New York, 92 NY2d 936 ; Burton v State of New York, 283 AD2d 875 ). The evidence here presented does not render other potential causes for the loss sufficiently remote or technical to enable the Court to render summary judgment in claimant's favor as a matter of law.
Accordingly, claimant's motion for summary judgment is denied.
September 23, 2009
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: