Opinion
# 2017-041-085 Claim No. 128898 Motion No. M-91107 Cross-Motion No. CM-91178
11-30-2017
ROBERT THOUSAND v. THE STATE OF NEW YORK
ROBERT THOUSAND Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General
Synopsis
Claimant's motion for summary judgment on bailment claim is denied where claimant fails to specifically identify and value personal property contained in envelope intended for mail and where claimant fails to prove, as a matter of law, that the envelope was lost or destroyed while in defendant's custody and control; defendant's cross-motion to dismiss is denied.
Case information
| UID: | 2017-041-085 |
| Claimant(s): | ROBERT THOUSAND |
| Claimant short name: | THOUSAND |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128898 |
| Motion number(s): | M-91107 |
| Cross-motion number(s): | CM-91178 |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | ROBERT THOUSAND Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 30, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves (M-91107) for summary judgment in this inmate lost property claim. Defendant opposes the motion and cross-moves (CM-91178) to dismiss the claim. Claimant has not opposed the defendant's cross-motion to dismiss the claim.
The claim, and claimant's motion papers, set forth lengthy, vague and conclusory allegations as to claimant's purported loss of an envelope he attempted to mail from Clinton Correctional Facility. The envelope allegedly contained material related to an unspecified criminal proceeding involving claimant. Claimant has unsuccessfully pursued inmate grievances with respect to the alleged loss of the envelope. The claim sounds in bailment:
"To establish a prima facie case of negligence in a bailment transaction, claimant must demonstrate that his property was deposited with the defendant and the defendant failed to return it . . . Once claimant meets his burden, there is a rebuttable presumption that the defendant is negligently responsible for the loss, and defendant must come forward with proof explaining the loss" Amaker v State of New York, UID No. 2006-032-511 [Ct. Cl., Hard, J., Aug. 14, 2006]; see Claflin v Meyer, 75 NY 260 [1878]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]; Micelli v State of New York, 179 Misc 2d 424, 428-429 [Ct Cl 1998]).
This and other decisions of the Court of Claims are accessible at the Court of Claims website. --------
"A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; see Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).
Both the claimant's motion papers and the claim refer to the alleged lost property as "law work," "legal mail" and "documentation." Neither the claim nor claimant's motion papers specifically identify any items or documents comprising the lost personal property nor do they specify the property's value beyond a reference in paragraph "39" of the claim to "4 complete certified copies of the record" which would allegedly cost $715.10 to "repurchase."
Claimant has failed to satisfy his initial burden on his summary judgment motion to show, through admissible proof, that specific, identifiable personal property was delivered to, and accepted by, defendant and that the property was lost or destroyed due to defendant's negligence.
Claimant's motion for summary judgment is denied.
Defendant cross-moves to dismiss the claim because "claimant states his time to appeal has expired and he can no longer appeal the criminal court findings. This means that his lost property has no value." Claimant has not stated that his lost personal property has "no value" nor has defendant produced admissible evidence showing that allegedly lost personal property has no value. Defendant's assertion that claimant's allegedly lost personal property "has no value" is, on this record, speculation (see, e.g. Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Defendant's cross-motion to dismiss the claim is denied.
November 30, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion for Summary Judgment, filed September 14, 2017; 2. Verified Statement of Robert Thousand, verified September 11, 2017, and annexed exhibits; 3. Defendant's Notice of Cross-Motion to Dismiss, filed October 6, 2017; 4. Affirmation of Anthony Rotondi, dated October 6, 2017.