New York State Court of Claims

New York State Court of Claims

OCEAN SIDE v. THE STATE OF NEW YORK, #2009-030-524, Claim No. 113496, Motion No. M-76113


Motion by claimant for partial summary judgment denied, motion to amend caption granted. Triable issues of fact as to what writings make up the linen services contract including its terms. Claimant did not establish what was delivered and either converted or not returned on demand as required to establish causes of action for conversion and bailment respectively

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:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
April 17, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion to amend the

caption[1] and for partial summary judgment:

1-3 Notice of Motion; Affirmation by Lidia Szczepanowski, attorney for claimant; Affidavit of Frank Ferrara, and attached exhibits

  1. Affirmation in Opposition to Claimant’s Motion for Partial Summary Judgment by Wanda Perez-Maldonado, Assistant Attorney General, and attached exhibits
  1. Reply Affirmation by Lidia Szczepanowski, and attached exhibits
6,7 Filed papers: Claim, Answer

Ocean Side Institutional Industries, Inc. [Ocean Side], the claimant herein, moves for partial summary judgment on the portion of this claim seeking recovery for the value of linen losses incurred and either caused by or not prevented by defendant, in the amount of $187,617.95 plus interest or, alternatively, judgment in the same amount on an account stated, and for other and further relief. This claim arises from the State’s alleged breach of a multi-year contract entered into with claimant for the provision of institutional and other laundry rental services, at the New York State Veteran’s Home at Montrose, New York [Montrose]. Breach of contract, conversion and/or bailment causes of action appear to be asserted.

As framed by counsel for claimant, the issues for which summary disposition are sought are “whether the inventory method used by Ocean Side to determine linen losses was proper and whether Ocean Side has substantiated its linen losses with reliable and undisputed documentary or other evidence.” [Reply Affirmation, ¶10]. Counsel indicates that “[c]laimant is not currently seeking summary judgment on the issue of whether or not Montrose had sufficient cause to terminate the contract between the parties based upon a purported deficiency in the quantity and quality of linens supplied by Ocean Side.” [Ibid. ¶9]. Counsel for defendant describes the issue as whether claimant has carried its burden on the motion to establish that there was a promise to pay for alleged losses, and further as to the amount of any loss given that the presentation of evidence shows only that there was an ongoing dispute between claimant and Montrose concerning inventory and billing procedures that remained ongoing until the somewhat fuzzy termination of the contract. Because of this underlying dispute, any money judgment now would be premature. The court agrees.

As the party seeking partial 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 in the first instance requires denial of summary judgment, regardless of the sufficiency of the opposing papers. Winegrad v New York Univ. Med. Center, supra at 853. Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action. Zuckerman v City of New York, supra at 562. If there is any doubt as to the existence of a material issue of fact, summary judgment should not be granted. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Issue finding, not resolution, is the court’s role. In that connection, the proof is examined in the light most favorable to the party opposing the motion, here, the defendant.

After reviewing claimant’s submissions the court is not convinced that a prima facie showing of entitlement to judgment as a matter of law has been established. The depositions taken of the principals of Ocean Side, and that of the fiscal manager at the Montrose facility, referencing their initial understandings of the terms of the contract and any modifications, and the subsequent disputes which, on claimant’s side, had all to do with the facility’s unexplained loss of linens that had been provided, and their alleged entitlement to compensation for such loss pursuant to contract or on common law bailment theories, establish only that there are conflicting recollections and issues of fact that prevent the summary resolution requested here by claimant. What constitutes the contract in the first instance is unclear, given the proliferation of additional writings that may (or may not) create a fully integrated agreement. Secondly, the value of any alleged linen loss is also not established given the underlying disputes.

Claimant urges the court to find summarily that its methodology for arriving at the billing for lost linen is a proper one. As described by the principals, Montrose was originally delivered linen on what is known as a “par basis.” What this meant was Montrose told Ocean Side what its initial needs were in terms of quantity of sheets and the like, and Ocean Side provided same. When soiled linen was returned, clean linen in the first established amounts was given back. Soiled linen was weighed, as was the clean linen. The expectation would be that clean linen - when soiled - would be 20% or so heavier, thus that percentage was deducted from the soiled amount returned to establish a net weight for soiled linen. Compared to the weight of the clean linen delivered, they should be relatively equal. Instead, the weight for the clean linen was consistently higher than the weight for the soiled linen, creating a linen loss for the difference. These linen losses were set forth in charts, in letters, and in invoices, sent to Montrose - eventually with some regularity - charging between $4.53 per pound[2] and $5.71 per pound. [Exhibits N and X, Affirmation by Lidia Szczepanowski]. None of this is mentioned in the various writings purportedly forming the contract and actually signed by the defendant: the party to be charged.

Review of the deposition of the fiscal manager at Montrose, Mr. Cissokho, reveals that when he stepped into the job in or about February 2005 Ocean Side was already the provider of linen services at Montrose, under a “piggy back” to an earlier contract [see Exhibit HH page 20, Affirmation by Lidia Szczepanowski], and that thereafter further agreements were entered into with which he had more direct involvement. A reading of his deposition, however, shows that he may not have had the authority to make any commitments with regard to paying for alleged linen losses, and that the above-described methodology for assessing such losses was not understood (assuming there was an obligation to pay for same).

While generally the State of New York subscribes to the so-called “four corners rule” in analyzing contracts, parol evidence may be considered if ambiguities are present. As noted by the Court of Appeals, there is
“ . . . a vital first step in the analysis: before looking to [extrinsic] evidence of what was in the parties’ minds, a court must give due weight to what was in their contract. A familiar and eminently sensible proposition of law is that, when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing . . . (citations omitted). That rule imparts ‘stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesses ... infirmity of memory ... [and] the fear that the...[fact finder] will improperly evaluate the extrinsic evidence.’ (Fisch, New York Evidence § 42, at 22 [2d ed].) . . . Whether or not a writing is ambiguous is a question of law to be resolved by the courts (Van Wagner Adv. Corp. v S & M Enters., 67 NY2d 186, 191).” W.W.W. Associates, Inc. v Giancontieri, 77 NY2d 157, 162 (1990).

Because a party urges one interpretation of a contract, while the other party urges a different construction, the agreement’s terms are not rendered ambiguous, requiring consideration of parol evidence to determine the intent of the parties.[3] Thus in Bethlehem Steel Co. v Turner Construction Co., 2 NY2d 456, 459 (1957), the court focused on the meaning of the words ‘prices for component materials’ contained in a contract allowing escalation of the prices charged based upon an increase in the ‘prices for component materials.’ Looking at the contract as a whole, the court was able to discern the meaning of the terms employed in the contract, and found that summary judgment had been properly granted.

Here, there is no concession as to what writings make up the contract, and on its face various terms cannot be defined. Moreover, it is not clear whether the defendant obligated itself to pay for missing linen, and from what point any such obligation ensued. There are issues concerning mutual assent in contract terms, given the lack of understanding about the methodology.

As a bailment or conversion claim, on these submissions claimant has not established what exactly was delivered and then not returned on demand, or what was converted.

Based on the foregoing, claimant’s motion for partial summary judgment is in all respects denied.

April 17, 2009
White Plains, New York

Judge of the Court of Claims

[1]. The application to amend the case caption to correct the name of the corporate claimant from Ocean Side Industrial Industries, Inc. to Ocean Side Institutional Industries, Inc., nunc pro tunc is hereby granted, and the caption is hereby amended accordingly.
[2]. Thus, for example, with an asserted weight variance of 27,017 pounds for the period from January 2005 through October 2005 the total charged for loss asserted was $122,385.54 at $4.53 per pound. [Exhibit L, Affirmation by Lidia Szczepanowski].
[3].See 58 N.Y. Jur 2d Evidence and Witnesses § 564 (2009), as to the parol evidence rule generally.