Opinion
# 2016-044-506 Claim No. 125591 Motion No. M-87803
02-09-2016
KING v. THE STATE OF NEW YORK
JAMEL KING, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Court denied inmate claimant's motion for summary judgment in bailment claim.
Case information
| UID: | 2016-044-506 |
| Claimant(s): | JAMEL KING |
| Claimant short name: | KING |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125591 |
| Motion number(s): | M-87803 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | JAMEL KING, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 9, 2016 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, filed this claim to recover for personal property allegedly lost when he was transferred to a Special Housing Unit (SHU) while incarcerated at Elmira Correctional Facility. Defendant answered and asserted several affirmative defenses. Claimant now moves for summary judgment. Defendant opposes the motion.
Initially, the Court notes that claimant has not provided an affidavit in support of this motion as required by CPLR 2214 and the Uniform Rules for the Court of Claims [22 NYCRR] § 206.8 (a) (see 4 Weinstein-Korn-Miller, NY Civ Prac ¶ 2214.02; see also Pettus v State of New York, Ct Cl, Mar. 26, 2007, Schaewe, J., Claim No. 112504, M-72699). Further, claimant has not submitted any documentary evidence with this motion (see CPLR 3212 [b]). Accordingly, claimant's motion could be denied solely on these procedural grounds. However, the Court will not deny the motion on this basis, particularly given the information contained in the notice of motion and the documentary evidence attached to the verified claim, as well as the copy of claimant's facility claim attached to claimant's response to defendant's answer.
Claimant, as the movant of this summary judgment motion, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
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 (Claflin v Meyer, 75 NY 260, 262 [1878]). Defendant has an obligation to secure an inmate's personal property (Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). Once a claimant meets the burden of proving that his property was deposited with the defendant and that the latter failed to return it, the burden shifts to the defendant to overcome the presumption of its negligence (Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]).
Claimant alleges that on May 5, 2014, he was removed from his program and taken directly to SHU. He states that his personal property located in his cell (I-5-33) was packed by a correction officer and taken to SHU at that time. Claimant alleges that on May 8, 2014, his property was repacked and an I-64 inventory form was completed. Claimant alleges that when he finally received his property on May 17, 2014, he determined that he was missing 5 tapes, 4 Buttman magazines, 38 cans of food ordered from Bust the Move, a single 12 oz can of tobacco, 1 blanket, 1 scrabble game set and dictionary, and various commissary items purchased on May 1, 2014. He indicates that he filed a facility claim on June 9, 2014.
In support of his claim, claimant submitted the I-64 form dated May 8, 2014, an invoice from Bust the Move dated March 20, 2014, an invoice for the tobacco dated April 24, 2014, and a receipt from the commissary dated May 1, 2014. Claimant's facility claim indicated that both the claim and the administrative appeal were denied.
Based upon a review of the invoices, claimant purchased 64 cans of food on April 24, 2014 and an additional 21 cans on May 1, 2014. However, he has not set forth any admissible evidence concerning the number of cans of food in his cell on May 5, 2014. Claimant also has not set forth any evidence of the amount of tapes or tobacco which were in the cell at that time. Because claimant has not established which items were in his possession at the time that his property was packed on May 5, 2014, he has not proven what items were lost between that time and May 8, 2014 when the property was repacked. Thus, claimant has not met his initial burden of establishing his entitlement to judgment as a matter of law.
Claimant alleges that he was taken from his program assignment directly to SHU, indicating that his property was apparently packed outside of his presence. It is not clear whether an I-64 form was prepared at that time.
The Court notes that the I-64 form dated May 8, 2014 lists 25 cans of food, 7 tapes, and 2 pouches of tobacco.
Accordingly, claimant's motion for summary judgment is denied without regard to defendant's opposition papers.
February 9, 2016
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on claimant's motion: 1) Notice of Motion filed on November 30, 2015. 2) Affirmation in Opposition of Douglas H. Squire, Assistant Attorney General, dated January 6, 2016, and attached exhibit. 3) Claimant's "Answer to Defendants Verified Answer" filed on March 26, 2015. Filed papers: Claim filed on January 29, 2015; Verified Answer filed on February 23, 2015.