Claimant's motion for summary judgment on bailment claim was denied.
|Claimant short name:||VIDAL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Joseph Vidal, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 23, 2009|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, moves for summary judgment on his bailment claim and for shipping costs he alleges were improperly deducted from his inmate account.
Claimant alleges that on January 8, 2009 his personal property was packed in several draft bags for shipment to another correctional facility. One of the bags contained his typewriter. He alleges that four of the bags were to be shipped by a commercial carrier and, for that purpose, his inmate account was debited in the sum of $80.90. Claimant appears to concede that he ultimately received all of his bags of property but alleges that his typewriter was returned in a damaged condition. He also alleges that although his account was debited for shipment costs, his property was not shipped by a commercial carrier. Claimant seeks damages in the sum of $245.00 for the damage to his typewriter and $80.90 for the sum deducted from his inmate account for shipping costs which were never incurred (see claim, ¶ 105).
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 ; 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 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 ). 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 , citing Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; see also Senor v State of New York, 23 AD3d 851 ). The claimant failed to establish the fair market value of the typewriter, which he alleges was returned in a damaged condition. He also failed to submit adequate proof to establish, as a matter of law, that his inmate account was improperly debited for shipping costs. Lastly, in opposition to the motion, defendant raised triable issues of fact as to whether the alleged damage to claimant's typewriter occurred in 2004, long before the date of the shipment which is the subject of this claim. While claimant alleges in reply that the typewriter was repaired in 2006, such an allegation merely raises an issue of fact requiring denial of his motion for summary judgment.
Based on the foregoing, claimant's motion is denied.
November 23, 2009
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: