Opinion
# 2012-048-073 Claim No. 116976 Motion No. M-81823
11-16-2012
RONNIE COLE v. THE STATE OF NEW YORK
Synopsis
In this Claim alleging negligent bailment, the Court granted Defendant's motion for summary judgment dismissing the Claim based on a settlement between the parties. Case information
UID: 2012-048-073 Claimant(s): RONNIE COLE Claimant short name: COLE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116976 Motion number(s): M-81823 Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: RONNIE COLE, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Timothy J. Flynn, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: November 16, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Ronnie Cole, filed and served a Claim on June 8, 2009 sounding in negligent bailment alleging that Defendant is responsible for the loss of certain personal property while he was incarcerated at Wende Correctional Facility, located in Erie County, under the supervision of the Department of Correctional Services ("DOCS").Specifically, Claimant alleges that 12 bags containing his personal property were lost when he was being transferred among numerous correctional facilities during the period of October 2008 through November 2008. Defendant now moves, pursuant to CPLR § 3212, for summary judgment dismissing the Claim. Claimant opposes the Motion.
DOCS is now known as the Department of Corrections and Community Supervision ("DOCCS") (see L 2011, c 62, pt C, subpt A, § 4, eff. March 31, 2011). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
The record before the Court reveals that, on December 4, 2008, while housed at the Walsh Regional Medical Unit in the Mohawk Correctional Facility in Rome, New York, Claimant filed an Inmate Property Claim, bearing claim number 390-0065-08, seeking damages for the loss of certain items of personal property in the amount of $7,261.00 (see Affidavit of Timothy J. Flynn, Exhibit C). On June 8, 2009, Claimant commenced the instant action and, on June 15, 2009, Claimant purportedly executed a document entitled "Release" (Affidavit of Timothy J. Flynn, Exhibit F). Defendant contends that the execution of this Release bars the instant action.
"Releases are contracts whose interpretation is governed by principles of contract law" (Metz v Metz, 175 AD2d 938, 939 [3d Dept 1991]), and a valid release that is clear and unambiguous on its face "constitutes a complete bar to an action on a claim which is the subject of the release" (Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 98 [1st Dept 2006], lv denied 8 NY3d 804 [2007]). Language in a release is ambiguous if it is susceptible to more than one reasonable interpretation (see Metz v Metz, 175 AD2d at 940). Whether such language is clear and unambiguous "is a question of law appropriately determined on a motion for summary judgment based upon the entire release and without reference to extrinsic evidence" (Zilinskas v Westinghouse Elec. Corp., 248 AD2d 777, 779 [3d Dept 1998]).
As movant for summary judgment, Defendant bears the initial burden of establishing that the release is unambiguous as a matter of law (see Johnson v Lebanese Am. Univ., 84 AD3d 427, 430 [1st Dept 2011]), and to tender sufficient evidence to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). If this showing is made, the burden shifts to the party opposing the summary judgment motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, so as to necessitate a trial (see id.). Failure to make the initial prima facie showing requires denial of the motion, "regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
In support of its motion, Defendant offers the affidavit of its attorney and, among other exhibits, a copy of a single-page document entitled "Release," sworn to by Claimant on June 15, 2009 which states:
I, the undersigned, in consideration of the sum of One hundred eighteen 50/100 DOLLARS ($118.50)to me in hand paid by the State of New York, the receipt whereof is hereby acknowledged, do for myself, my heirs, executors, administrators and assigns, release and discharge the State of New York, its officers, agents and employees, from all claims, demands and liability of every kind and nature, legal or equitable, occasioned by or arising out of the facts set forth in the foregoing claim, and in case any claim shall have been filed by me with the Clerk of the Court of Claims for said damages at any time prior to the date of this release, I consent and stipulate that an order may be made by the Court of Claims without notice to me dismissing said claim upon the merits
(Affidavit of Timothy J. Flynn, Exhibit F). The terms "foregoing claim" and "said damages" are not defined, described or identified in that document. There is also no reference made in the Release to Inmate Property Claim 390-0065-08. Moreover, no other document is appended to or attached to the copy of the release submitted to the Court. Indeed, the only link in the Release to Claimant's original Inmate Property Claim is the $118.50 figure. However, the $118.50 figure set forth in the Release is also contained in another single-page document offered by Defendant, entitled "Claim," sworn to by Claimant on June 15, 2009 (Affidavit of Timothy J. Flynn, Exhibit E). This document states, in relevant part:
Ronnie Cole, being duly sworn deposes and says that he resides at 6100 School Road in the city of Rome County of Oneida State of New York, and hereby presents to the Commissioner, Department of Correctional Services of the State of New York, a verified claim, in the sum of One hundred eighteen ($118.50) for damages sustained by him solely on account of a tort of an officer or employee of the State of New York, while acting as such officer or employee. The details constituting such tort and damages appear on the attached Departmental Claim Form.(Affidavit of Timothy J. Flynn, Exhibit E).
Notwithstanding this quoted text, no Departmental Claim Form is attached to the document. There is, however, a typed entry on the document below Claimant's notarized signature and above the signature of the Institution Steward which reads: "Refer to Investigation sheet and attached memorandum." A two-page document entitled "Inmate Property Value Calculator" is appended to this document which identifies 39 lines of items of lost property and the dollar value assigned each item. Consistent with such entry on the sworn Claim document, a one-page Mohawk Correctional Facility Memorandum is also appended. This Memorandum is addressed to Claimant from Ms. S. Fortin, DSA, and contains the subject line: "Inmate Claim 390-0065-08." This Memorandum makes it clear that, in settlement of Claimant's Inmate Property Claim 390-0065-08, Claimant was to be refunded $118.50 in cash through the processing of a Standard Voucher, and an additional $156.68 restitution to his inmate account for postage costs.At the bottom of the Memorandum appears Claimant's signature, and an unidentified witness signature, following the declaration: "I, Inmate Cole, 91A9212, accept the above conditions as complete resolution of the Inmate Claim 390-0065-08 " (Affidavit of Timothy J. Flynn, Exhibit E.)
The Court cannot determine why the $156.68 in restitution is not made part of the Release (see Affidavit of Timothy J. Flynn, Esq., Exhibit F) or the Claim (see Affidavit of Timothy J. Flynn, Esq., Exhibits E), in addition to the $118.50.
In addition to being appended to the sworn claim in Exhibit E of counsel's Affidavit, the Memorandum also comprises the whole of Exhibit D.
Based on this evidence, the Court finds that the Release is ambiguous because it fails to identify the Claim being released and that, therefore, Defendant failed to establish its prima facie entitlement to summary judgement dismissing the Claim based on the Release itself. However, based on the documents submitted in support of its Motion, the Court finds that Defendant has established its prima facie entitlement to summary judgment dismissing the Claim on another ground (see Lee v City of Rochester, 254 AD2d 790, 791 [4th Dept 1998]) - specifically, based on the binding settlement between the parties relating to Inmate Property Claim 390-0065-08.
Like releases, settlement agreements are subject to the principles of contract law and interpretation (see Brad H. v City of New York, 17 NY3d 180, 185 [2011]). "To establish the existence of an enforceable agreement, [there must be] an offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound. That meeting of the minds must include agreement on all essential terms" (Kowalchuk v Stroup, 61 AD3d 118, 121 [1st Dept 2009] [internal citations omitted]). Whether a contract is clear and unambiguous on its face is a determination to be made by the Court as a matter of law (see Jackson v YAM Holding Corp., 97 AD3d 637, 638 [2d Dept 2012]). If an agreement is determined to be clear on its face, intent must be gleaned from within the four corners of the document without resort to extrinsic evidence (see Brad H. v City of New York, 17 NY3d at 186). While a contract may be invalidated based on "fraud, duress or some other wrongful act on the part of any party to the contract" (Dunkin' Donuts of Am. v Liberatore, 138 AD2d 559, 560 [2d Dept 1988]), conclusory assertions of the same will be insufficient to successfully oppose a motion for summary judgment (see ACF Hillside, LLC v Lambrakis, 95 AD3d 794, 795 [2d Dept 2012], lv denied 19 NY3d 810 [2012]).
Here, based on the undisputed evidence, the Court finds that the Claim document, executed by Claimant before a Notary Public on June 15, 2009, which incorporates the Inmate Property Value Calculator and Memorandum dated June 15, 2009 (see Affidavit of Timothy J. Flynn, Exhibit E), unambiguously establishes Defendant's offer to settle Inmate Property Claim 390-0065-08 consisting of 39 lines of items, Claimant's acceptance of that offer, consideration by its terms, and the parties' intent to be bound. Accordingly, the Court finds that Defendant has establish its prima facie entitlement to summary judgment as a matter of law, thus shifting the burden to Claimant to rebut Defendant's showing.
In opposition to Defendant's motion, Claimant does not dispute Defendant's factual assertions, but contends that Defendant engaged in fraud and/or constructive fraud and that he was fraudulently induced into signing the Release with "the belief that the items on his Institutional claim given a zero dollar value, [see inmate property value calculator, exhibit e of defendant's affidavit in support of motion for summary judgment.] were decided no longer part of the institutional claim being presented to the defendant, and as such, any and all, procedural barrs [sic] in place to limit or hinder claimant's ability to raise those items in any other forum were inapplicable" ("Affirmation" of Ronnie Cole, paragraph 7). Claimant concedes that he "can't prove that the defendant's agents intentionally misrepresented the release. Yet, in not explaining the release, material facts were concealed" ("Affirmation" of Ronnie Cole, paragraph 12).
Claimant's conclusory allegations in support of his assertions of fraud are not supported by admissible evidence and are insufficient to raise a triable issue of fact. In any event, Claimant concedes that he is unable to prove intent - one of the elements of a claim for fraud (see Levin v Kitsis, 82 AD3d 1051, 1054 [2d Dept 2011]). Furthermore, Claimant has failed to show that Defendant had a fiduciary duty to Claimant in connection with his inmate claim - an element required to establish constructive fraud (see Sears v First Pioneer Farm Credit, ACA., 46 AD3d 1282, 1286 [3d Dept 2007]). Based on the foregoing, the Court finds that Claimant has failed to rebut Defendant's prima facie entitlement to summary judgment as a matter of law.
Accordingly, Defendant's Motion No. M-81823 is granted.
November 16, 2012
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Defendant's Notice of Motion, filed June 27, 2012;
Affidavit of Timothy J. Flynn, Esq., sworn to on June 26, 2012, with Exhibits A-G;
"Affirmation" of Ronnie Cole, sworn to on July 11, 2012.