Claimant's motion for summary judgment on bailment claim was denied.
|Claimant short name:||PETERSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||David Peterson, 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:||January 12, 2010|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, moves for summary judgment on his bailment claim pursuant to CPLR 3212.
Claimant alleges that during the course of a transfer from Great Meadow Correctional Facility to the Special Housing Unit at Upstate Correctional Facility one of four bags of personal property which he delivered to prison officials for transit and safekeeping was lost. Claimant was transferred from Great Meadow on December 18, 2006 and arrived at Upstate Correctional Facility on December 20, 2006 following a two-day stay-over at Downstate Correctional Facility. Upon his initial arrival at Upstate, two of the four bags of personal property were missing. On December 27, 2006 one of the two missing bags was found. Claimant alleges that one bag of his property remains missing.
Claimant filed an administrative claim dated January 12, 2007 alleging the loss of trial transcripts, a blanket, 23 cassette tapes and a set of sheets. Following an investigation the claim was partially approved on May 31, 2007 in the amount of $40.00, representing the depreciated value of the lost blanket and sheets. The claim for the lost trial transcripts was denied with the notation "legal acctd for on 2064 & bin sheet". Dissatisfied with the determination, claimant filed an appeal contending that the only legal papers returned to him were "photo copies that I had previously made from law books " and that his trial transcripts and other legal papers remained missing. He also noted that the 2064 form in which receipt of property was acknowledged was neither signed nor initialed by him. The decision awarding claimant the sum of $40.00 was affirmed on November 6, 2007.
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 the motion for 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 (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 ). Thereafter the burden of coming forward with evidence 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 ; Weinberg v D-M Rest. Corp., supra).
Claimant failed to meet his burden of establishing that the property he claims was lost was, in fact, delivered to the possession of the defendant but not returned. Claimant's Exhibits A through D are Personal Property Transfer Forms (Form 2064) that are either illegible or fail to reflect the items of personal property which the claimant alleges were delivered to the defendant. Moreover, in opposition to the claimant's motion the defendant submitted Personal Property Transfer Forms (defendant's Exhibit A) and a 30 Day Bin form (defendant's Exhibit B), which reflect the receipt of the items for which this claim is made, i.e., legal papers, sheets, blanket and cassette tapes. While the claimant indicates that the initials on these forms are not his, this is an issue of fact for which a trial is necessary.
Based on the foregoing, claimant's motion for summary judgment is denied.
January 12, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: