Claimant's motion for summary judgment on bailment claim denied.
|Claimant short name:||ROUNDTREE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Juel Roundtree, Pro Se|
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Albert D. DiGiacomo, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 5, 2021|
|See also (multicaptioned case)|
Pro se Claimant Juel Roundtree, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), filed this Claim on February 5, 2020 seeking damages for the alleged loss and/or destruction of his property at Marcy and Orleans Correctional Facilities.
In particular, Claimant asserts that on September 25, 2019, while incarcerated at Marcy Correctional Facility, he was sent to the Special Housing Unit (SHU) and his "property was still on unit G-1 15 bed" (Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, Ex A [Claim] at Ex 1). Claimant contends he received his personal property three days later with several items missing, including a hot pot, lamp, fan, extension cord, nine packs of Newport cigarettes, a CT-150 tape player, JVC headphones, Georgetown Law Review 2019 edition, two pairs of slippers, and 10 stamps (see Claim, Exs 1-2). Claimant alleges his property was stolen by two correction officers in retaliation for reporting an assault purportedly committed by another correction officer against Claimant (see Claim ¶ 3). Claimant also alleges that on or around December 5, 2019 his "showerbag in Orleans SHU 200 was either thrown out or put with someone on drafts property leaving the SHU" (id.). Claimant avers that several hygienic products were lost, including two toothpastes, soap, shampoo, shaving cream, mouthwash, as well as a hairbrush (see Claim Ex 9).
On or about October 12, 2019, Claimant filed an administrative claim (#490-0215-19) seeking to recover his personal property allegedly stolen at Marcy Correctional Facility (see Claim, Ex 1). On or about November 8, 2019, administrative claim #490-0215-19 was denied on the ground that Claimant's property was left unsecured when he was sent to SHU (see Claimant's Aff in Supp of Mot, at pg 3). Claimant modified his administrative Claim on or about November 12, 2019 after certain of the lost items were recovered (see Claim Ex 2). The modified administrative claim sought $353.90 (see id.). The modified administrative claim was denied on November 22, 2019 (see Claimant's Aff in Supp of Mot, at pg 3).Claimant appealed the initial administrative determination on November 15, 2019 and, on November 25, 2019, the administrative appeal was denied (see id. at pg 4).(1)
On or about December 13, 2019, Claimant filed an administrative claim (#640-0127-19) seeking to recover $9.48 for the lost property at Orleans Correctional Facility (see Claim Ex 9). On or about December 20, 2019, administrative claim #640-0127-19 was denied (see Claimant's Aff in Supp, at pg 5). Claimant appealed the administrative determination, which was denied on December 27, 2019 (see id.). This Claim ensued. Claimant now moves for summary judgment on his Claim. Defendant opposes the motion.
Initially, Defendant argues that the motion should not be considered because Claimant failed to submit a notice of motion as is required under CPLR 2214 and Uniform Rules for the Court of Claims (22 NYCRR) § 206.8 (a) (see Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General ¶ 10). However, Movant has attached a document entitled "Plaintiff's Motion for Summary Judgment CPLR Rule 3212 Claim No. 134417" which, in essence, is a notice of motion. Consequently, the Court will not deny the motion on this ground (see Gomez v State of New York, UID No. 2019-028-562 [Ct Cl, Sise, P.J., June 28, 2019]; Lee v State of New York, UID No. 2006-018-551 [Ct Cl, Fitzpatrick, J., Dec. 20, 2006]; see also Flores v State of New York, UID No. 2017-044-538 [Ct Cl, Shaewe, J., May 2, 2017]).
Additionally, although Claimant fails to attach a copy of the pleadings to his motion papers as is required under CPLR 3212 (a), Defendant attached the pleadings to its opposition papers (see Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, Exs A [Claim], B [Answer]). Consequently, the Court concludes that the record is "sufficiently complete" to render a determination on the merits of Claimant's motion for summary judgment (Washington Realty Owners, LLC v 260 Wash. St., LLC, 105 AD3d 675, 675 [1st Dept 2013] ["(t)he record is sufficiently complete when, although the movant has not attached all of the pleadings to the motion, a complete set of the papers is available from the materials submitted"]; see Pandian v New York Health & Hosps. Corp., 54 AD3d 590, 591 [1st Dept 2008] [pleadings attached to reply papers]; see also McRae v State of New York, UID No. 2016-044-511 [Ct Cl, Schaewe, J., Feb. 29, 2016] [record is sufficiently complete to decide summary judgment motion where "copies of the pleadings are on file with the Clerk of the Court and have been reviewed by the Court on th(e) motion"]).
Summary judgment is "a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (St. Paul Indus. Park v New York State Urban Dev. Corp., 63 AD2d 822, 822 [4th Dept 1978]; see Brink v Davis, 114 AD2d 718, 720 [3d Dept 1985]). It is well settled that "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 demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). "The moving party's failure to make a prima facie showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Vega v Restani Const. Corp., 18 NY3d 499, 503  [internal quotation marks, citation, and alterations omitted]).
However, if the proponent of a motion for summary judgment has established its prima facie entitlement to judgment as a matter of law, "the burden shifts to the party opposing the motion for summary judgment 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, 68 NY2d at 324; see Zuckerman v City of New York, 49 NY2d 557, 562 ). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion, here, Defendant (see Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept 1983]).
The State as a bailee of an inmate's personal property owes a common law duty to secure the property in its possession (see Pollard v State of New York, 173 AD2d 906, 907 [3d Dept 1991]; 7 NYCRR part 1700)."[O]ne of the essential elements of a bailment is that the property be taken into the possession of the bailee" (Osborn v Cline, 263 NY 434, 437 ; Edwards v State of New York, UID No. 2018-018-982 [Ct Cl, Fitzpatrick, J., Dec. 3, 2018]). Thus, to establish a prima facie entitlement to summary judgment in a bailment claim, a claimant must demonstrate 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 (see Tweedy v Bonnie Castle Yacht Basin, Inc., 73 AD3d 1455, 1455-1456 [4th Dept 2010]; Ramirez v City of White Plains, 35 AD3d 698, 698 [2d Dept 2006]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948, 949 [3d Dept 1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550, 550 [1st Dept 1977]). Additionally, the claimant must "establish the reasonable market value of the property on the date of its loss or destruction" (Roberts v State of New York, UID No. 2017-015-286, [Ct Cl, Collins, J., Nov. 23, 2017]; see Reed v Cornell Univ., 138 AD3d 816, 818 [2d Dept 2016]; Edwards v State of New York, UID No. 2019-028-528 [Ct Cl, Sise, P.J., May 21, 2019]).
Here, Claimant failed to satisfy his burden of establishing that his property alleged to have been lost at Marcy Correctional Facility and Orleans Correctional Facility was delivered to DOCCS.
Indeed, Claimant has not produced evidence establishing proof of ownership of all of the items allegedly lost at Orleans Correctional Facility. Although Claimant attaches to his Claim a receipt from Greene Correctional Facility dated October 30, 2019, purportedly showing the purchase of shampoo packets, soap packets, and shaving pads allegedly lost at Orleans Correctional Facility (see Claim Ex 10), the receipt does not show that he purchased, owned or otherwise possessed the other items allegedly lost, namely, toothpaste, bars of soap, mouthwash, a hairbrush, or non-State issued shampoo. Claimant states that an inmate Personal Property Transferred (I-64) form demonstrates his ownership and/or possession of these items; however, he fails to present the I-64 form with his Claim or in support of his motion.
Claimant has also set forth an unsupported itemization of value for each item allegedly lost at Orleans Correctional Facility without indicating how he arrived at such value, and whether a reasonable rate of depreciation has been considered in arriving at the fair market value for these items. Notably, the value Claimant denotes for the shampoo packets, soap packets, and shaving pads on his Inmate Claim Form dated December 13, 2019 is higher than the amount he paid for those items at Greene Correctional Facility on October 30, 2019 (compare Claim Ex 9, with Claim Ex 10).
Consequently, even assuming Claimant established that his property lost at Orleans Correctional Facility was delivered to DOCCS, a question of fact certainly exists as to whether the amount claimed for the value of these items of personal property represents fair market value (see Edwards, UID No. 2019-028-528).
Similarly, even assuming Claimant established that his property lost at Marcy Correctional Facility was delivered to DOCCS, there are material issues of fact regarding whether Claimant's property was secured which must be determined at trial (see Smith v State of New York, UID No. 2017-053-547 [Ct Cl, Sampson, J., Aug. 30, 2017] [denying the claimant's motion for summary judgment on his bailment claim, holding "(w)hether (the) claimant failed to secure his property or whether (the) defendant failed to observe that (the) claimant's locker was unsecured or failed to properly secure (the) claimant's property are all questions of fact that necessitate a trial of this claim"]; Lewis v State of New York, UID No. 2015-009-033 [Ct Cl, Midey, Jr., J., Dec. 14, 2015] [holding material issues of fact precluded summary judgment for the claimant on bailment claim where the claimant alleged the personal property remained secure while in his possession and the defendant relied upon the denial of the administrative claim and administrative appeal for the claimant's failure to secure his property]; see also Texidor v State of New York, UID No. 2018-038-116 [Ct Cl, DeBow, J., Dec. 6, 2018] [holding the State cannot be held liable for an inmate's lost or missing property where such property is not secured in the inmate's cell]).
In sum, even assuming Claimant established his prima facie entitlement to judgment as a matter of law, material issues of fact persist and preclude an award of summary judgment.
Accordingly, it is hereby
ORDERED, that Claimant's motion number M-96220 is DENIED.
February 5, 2021
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
(1) Plaintiff's [sic] Motion for Summary Judgment CPLR Rule 3212 Claim No. 134417, dated November 19, 2020.
(2) Claimant's Affidavit in Support of Motion, sworn to November 20, 2020, with attachments.
(3) Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, dated January 31, 2021, with attachments.
1. It is unclear whether Claimant appealed the denial of his modified administrative claim. Nevertheless, it is evident Claimant exhausted his administrative remedies as it relates to the initial administrative determination.