Paul F. Cagino, Esquire, Assistant Attorney General">
Claimant's motion for summary judgment on his bailment claim was denied.
|Claimant short name:||ROBERTS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Shawn Roberts, Pro Se|
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Paul F. Cagino, Esquire, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 23, 2017|
|See also (multicaptioned case)|
Claimant, proceeding pro se, moves for summary judgment on his bailment claim pursuant to CPLR 3212.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision, seeks damages for the loss of certain personal property entrusted to prison officials but not returned.
It is well settled that "the summary judgment movant bears the heavy burden of establishing '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' " (Deleon v New York City Sanitation Dept., 25 NY3d 1102 , quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; see also Vega v Restani Constr. Corp., 18 NY3d 499, 503 ; CPLR 3212 [b]). CPLR 3212 specifically requires that a motion for summary judgment be supported "by a copy of the pleadings(1) and by other available proof, such as depositions and written admissions". It goes on to state that "[t]he motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." Only where the movant has made the required showing does the burden shift to the opposing party "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).
In order to establish his prima facie entitlement to summary judgment on the instant bailment claim, claimant was required to demonstrate that he delivered the property to the defendant with the understanding that it would be returned, and the defendant failed to return the property or returned it in a damaged condition (7 NYCRR 1700.7 [b]; Tweedy v Bonnie Castle Yacht Basin, Inc., 73 AD3d 1455 [4th Dept 2010]; Ramirez v City of White Plains, 35 AD3d 698 [2d Dept 2006]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 [3d Dept 1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]). In addition, claimant is required to establish the reasonable market value of the property on the date of its loss or destruction (see Reed v Cornell Univ., 138 AD3d 816 [2d Dept 2016]). Once this showing has been made, the burden of coming forward with evidence that the loss or damage to the property was not its fault is upon the defendant (7 NYCRR 1700.7 [b] ; Tweedy at 1456; Feuer Hide & Skin Corp. at 949; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]).
Here, although claimant established that he delivered property to the defendant with the understanding that it would be returned, he failed to establish the nature of the property entrusted, his ownership of the property or its reasonable market value on the date of loss. Claimant's affidavit does not specify the particular property which he claims was not returned, the copy of the claim submitted with the motion is unverified, and the motion is not supported by the I-64 forms indicating each item of personal property entrusted to the defendant. Nor is the motion supported by receipts for the purchase of the property. "Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable" (Rush v State of New York, UID No. 2007-030-019 [Ct Cl, Scuccimarra, J., June 18, 2007]). While an Inmate Claim Form (Form 1421) was submitted in support of the motion and reflects the specific property lost and claimant's estimates of cost, age, and value, it was not received in admissible form (see Zuckerman v City of New York, 49 NY2d 557 ; CPLR 4518). Even if the Inmate Claim Form was in admissible form, however, the estimated value of the property, provided therein by the claimant, constitutes no more than self-serving hearsay, insufficient to support summary judgment (see generally Matter of Leon RR, 48 NY2d 117 ; Johnson v Lutz, 253 NY 124 ; Memenza v Cole, 131 AD3d 1020, 1022 [2d Dept 2015]; Stevens v Kirby, 86 AD2d 39 [4th Dept 1982]). Accordingly, the Court finds claimant failed to establish his entitlement to summary judgment.
Based on the foregoing, the claimant's motion is denied.
November 23, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
2. While defendant contends in opposition to the motion that claimant failed to support his motion with copies of the pleadings, the motion filed in the Clerk's office includes copies of the pleadings and defendant failed to support its contention with a copy of the papers served. (3)
3. While defendant contends in opposition to the motion that claimant failed to support his motion with copies of the pleadings, the motion filed in the Clerk's office includes copies of the pleadings and defendant failed to support its contention with a copy of the papers served. ' ' '