Opinion
# 2019-038-504 Claim No. 128019 Motion No. M-92846
01-16-2019
ROBERT ROMERO v. THE STATE OF NEW YORK
ROBERT ROMERO, Pro se LETITIA JAMES, Attorney General of the State of New York By: Heather R. Rubinstein, Assistant Attorney General
Synopsis
Claimant's motion for summary judgment denied. Bailment claim seeks compensation for items delivered to defendant and found missing when package was received by recipient. Documents from the administrative claim process that were submitted by claimant in support of his motion raised an issue of fact as to whether items were lost while in the possession of DOCCS or the United States Postal Service.
Case information
| UID: | 2019-038-504 |
| Claimant(s): | ROBERT ROMERO |
| Claimant short name: | ROMERO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128019 |
| Motion number(s): | M-92846 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ROBERT ROMERO, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Heather R. Rubinstein, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 16, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, seeks compensation for lost personal property in this claim sounding in negligent bailment. Specifically, in the claim and his submissions in support of his instant motion for summary judgment, claimant asserts that he delivered 24 items of personal property at the Green Haven Correctional Facility (CF) package room to be mailed on January 5, 2016 and that 18 of those items were not received by the recipient. Claimant asserts that he has exhausted his administrative remedies, and he seeks summary judgment on this judicial claim. Defendant opposes the motion.
The party moving for summary judgment bears the initial burden of establishing his right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). It is well established that:
"[o]n a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) and then only if, upon the moving party's meeting of this burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action' (id.)"
(Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]).
Claimant's submission consist of an affidavit in which he makes legal argument, the claim, an Authorization for Disposal of Personal Property Form, the Inmate Claim Form, an affidavit of the intended recipient of the missing items and photographs. In the Inmate Claim Form, claimant describes the alleged loss as follows:
"This claim arises from the theft of 18 hand knitted and/or crocheted items that were taken to the facility package room to be mailed home. This occurred on Jan. 5, 2016. Claimant dropped off 24 items and filled out a disbursement as is protocol. On or about Jan. 11, claimant called the person who was to receive the items mailed and was informed that only 6 items were in the small box that arrived from the G.H.C.F. package room."
(Romero Affidavit, Inmate Claim Form, Part 1, at ¶ 6). Claimant's administrative claim was disapproved on March 14, 2016 on the grounds that "[e]vidence indicates that the facility was not at fault or in any way responsible for the loss" and that "Package room records show all items were shipped out" (id., Part 3). Claimant's administrative appeal was denied on April 7, 2016 on the ground that "Package arrived at destination on 1/11/16. If items are missing, claim is with U.S.P.S. No evidence to substantiate loss while in possession of DOCCS" (id., Part 5). Claimant submitted the affidavit of Mary Louise Stickles, the recipient of the package who averred that she received a package that appeared to have been mailed from Green Haven CF containing eight hand knitted or crocheted items, that the package "arrived in good condition and there was no evidence that the package was tampered with while in transit" (id., Stickles Affidavit).
Claimant argues that he has "submitted unrefutable [sic] evidence showing that Defendant, [] due to the random and unauthorized acts committed by the agents acting on behalf of Defendant, either negligently or deliberately lost and/or stole personal property owned by the Claimant" (id., ¶ 8). Defendant argues that the denial of claimant's administrative claim on the ground that he received his property raises a material issue of fact the precludes the granting of summary judgment. In reply, claimant argues that defendant erroneously asserted that claimant received his property and that the documentary proof establishes prima facie his entitlement to judgment as a matter of law.
While claimant is entirely correct that the administrative disapproval of his claim was not based on the ground that he received his property, the initial disapproval and subsequent appeal determination raise a material issue of triable fact as to whether defendant or the United States Postal Service was responsible for claimant's loss. Therefore, in viewing the facts in the light most favorable to the non-moving party, the Court concludes that claimant has failed to establish prima facie his entitlement to judgment as a matter of law.
Accordingly, it is
ORDERED, that Motion No. M-92846 is DENIED.
January 16, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Notice of Motion, dated September 11, 2018; (2) Affidavit of Robert Romero, sworn to September 11, 2018, with attachments; (3) Affirmation of Heather R. Rubinstein, AAG, dated October 9, 2018; (4) Reply Affidavit of Robert Romero, sworn to October 25, 2018.