New York State Court of Claims

New York State Court of Claims

CRAWLEY v. STATE OF NEW YORK, #2009-039-123, Claim No. 106269, Motion Nos. M-76268, CM-76332


Claimant seeks damages for the loss of various personal property items from his locker. The parties’ motions for summary judgment are denied. Documents offered by defendant in support of its motion for summary judgment lack an adequate foundation and raise issues of credibility that must be resolved at trial. Claimant has not made a prima facie showing of entitlement to judgment as a matter of law by offering sufficient proof in admissible form to eliminate any triable issues of fact.

Case Information

FRANK CRAWLEY, (00-R-4572)
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):
James H. Ferreira
Claimant’s attorney:
Frank Crawley, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Paul F. CaginoAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 3, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate at Coxsackie Correctional Facility, filed a bailment claim on June 24, 2002 alleging, among other things, that on May 8, 2002 prison officials conducted an area search of Dorm #1and that, upon his return from a “dental callout” sometime thereafter, he discovered that the contents of his personal property locker had been stolen. Issue was joined, and defendant now moves the Court for an order awarding summary judgment pursuant to CPLR 3212. Defendant contends that summary judgment is appropriate because it never took possession of claimant’s personal property and, therefore, a bailment was not created. Claimant opposes the motion and cross moves for summary judgment.

It is well settled that the State has a duty to secure the property of an inmate, and that a claim in the nature of bailment may be brought against the State (see Pollard v State of New York, 173 AD2d 906, 907 [1991]). “Ordinarily, a bailment is created when personal property is delivered into the hands of another, who is then expected to return it in the same condition on demand” (Gagne v State of New York, 14 Misc 3d 1214[A]). “Where a bailment is created, a showing that the [items] were delivered to the bailee and returned in a damaged condition establishes a prima facie case of negligence and the burden shifts to the bailee to demonstrate that it exercised ordinary care” (Board of Educ. of Ellenville Cent. School v Herb’s Dodge Sales & Serv., 79 AD2d 1049, 1050 [1981]).

In support of its motion, defendant offers the affirmation of its attorney which is based upon various documents kept on file at Coxsackie Correctional Facility and attached as exhibits to the affirmation. Those documents include an interdepartmental communication from E. Burgess to Captain Dorie dated April 3, 2002 wherein he states, among other things, that “on March 8, 2002 the canine unit conducted a frisk of Dorm 1 [and that] . . . at no time were any lockers opened,” a memorandum from Superintendent G. H. Filion to claimant dated April 15, 2002 informing claimant, among other things, that officers and security supervisors “verified that no lockers were opened during the frisk of Dorm 1,” an interdepartmental communication from Correction Officer Williams to Sgt. Burgess dated March 22, 2002, and various documents related to claimant’s inmate grievance.

The Court concludes that the foregoing proof is insufficient to meet defendant’s burden on the motion, and that its motion must therefore be denied. It is well settled that the proponent of a summary judgment motion must “tender . . . evidentiary proof in admissible form” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and that “credibility questions . . . cannot be resolved on a motion for summary judgment” (Oliver v Tanning Bed, Inc., 50 AD3d 1259, 1261 [2008]; see also Greco v Posillico, 290 AD2d 532 [2002]). Here, the documents attached as exhibits to counsel’s affirmation, which are offered to establish that the lockers were not opened during the frisk of Dorm 1 and that, therefore, defendant never took possession of claimant’s personal property, lack an adequate foundation and raise issues of credibility that must be resolved at trial. There is no affirmative proof before the Court that Burgess was present at the time of the frisk, and it is clear from a review of Superintendent Filion’s memorandum that his statements are based upon information received from others. Correction Officer Williams’ interdepartmental communication does not include any proof that defendant did not take possession of claimant’s personal property during the March 8, 2002 frisk, nor does it establish that he was even present during the frisk. Likewise, the remaining documents offered, which relate to claimant’s inmate grievance, contain the conclusions of prison officials based upon proof that is not before the Court and that may or may not be admissible. Moreover, the determination of whether defendant took possession of the contents of claimant’s property locker will require an assessment of credibility.

The Court further finds that claimant’s cross motion for summary judgment must be denied. Claimant has not made a prima facie showing of entitlement to judgment as a matter of law by offering sufficient proof in admissible form to eliminate any triable issues of fact with respect to the creation of a bailment and defendant’s failure to return his personal property.

Accordingly, it is hereby ORDERED that M-76268 and CM-76332 are hereby denied.

June 3, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered
  1. Notice of Motion dated February 11, 2009;
  2. Affirmation in Support of Motion for Summary Judgment by Paul F. Cagino, AAG, dated February 11, 2009, with exhibits;
  3. Notice of Cross Motion dated February 26, 2009; and
  4. Affidavit in Support of Motion in Opposition to Defendant’s Motion by Frank Crawley sworn to on February 27, 2009.