Claimant's motion for summary judgment and the issuance of trial subpoenas relating to the upcoming trial of his bailment claim was denied.
|Claimant short name:||BYRD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Raheme Byrd, Pro Se|
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 7, 2017|
|See also (multicaptioned case)|
Claimant, proceeding pro se, moves for "dispositive relief" and for the issuance of trial subpoenas.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision, seeks damages for the value of certain personal property allegedly removed from his cell by or at the behest of correction staff following a disciplinary incident at Great Meadow Correction Facility on May 1, 2013.
Initially, to the extent claimant intends the instant motion to be one for summary judgment pursuant to CPLR 3212, he failed to establish, through the tender of evidence in admissible form, his prima facie entitlement to this relief (Zuckerman v City of New York, 49 NY2d 557 ). Neither evidence of ownership or property value nor copies of the pleadings were submitted in support of the motion as required by CPLR 3212. Claimant's failure to make a prima facie showing requires denial of his motion to the extent it seeks summary judgment, regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ).
Turning to claimant's request for subpoenas, since pro se litigants are not authorized to issue subpoenas, issuance by the Court is necessary (CPLR 2302 [a], [b]). To obtain a subpoena compelling the attendance of witnesses at trial, the burden rests on the party seeking the subpoena to establish that the witness testimony sought is both material and necessary to the prosecution or defense of the action (Matter of Kapon v Koch, 23 NY3d 32, 38 ; Romance v State of New York, UID No. 2014-038-525 [Ct Cl, DeBow, J., June 3, 2014]; Allaway v State of New York, UID No. 2004-016-0555 [Ct Cl, Scuccimarra, J., April 7, 2010]). Here, claimant failed to establish the relevance of, or necessity for, the testimony of the inmates he seeks to subpoena, Elijahwan Trammell and Robert Tumminia.
Mr. Trammell indicates in his statement submitted in support of the motion that he is willing to testify that he observed a correction officer allow another inmate to enter claimant's cell and "steal" his T.V. However, in order to prevail on a bailment claim, in addition to establishing that he exhausted his administrative remedies, clamant need only establish that he delivered the property to the defendant with the understanding that it would be returned, and that 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]). Where an inmate's property is left in his locked cell pending a transfer, defendant's exclusive possession and control of the property is established (Diaz v State of New York, UID No. 2014-015-576 [Ct Cl, Collins, J. April 21, 2014]). 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]). Thus, claimant may establish his claim through his own testimony regarding the circumstances in which the property was left in his cell but not returned, together with documentary evidence establishing ownership of the property and its value. Establishing how the property was lost is not claimant's burden. Mr. Trammell's anticipated testimony that he observed a correction officer allow another inmate to enter claimant's cell and "steal" his T.V. is, therefore, unnecessary for claimant to prevail on his bailment claim.
To the extent claimant seeks a subpoena compelling Mr. Tumminia to testify on his behalf at trial, he failed to establish the relevance of his anticipated testimony. Mr. Tumminia's affidavit, submitted in support of claimant's motion, describes an incident he observed involving the claimant in which force was applied by correction officers. However, the damages alleged in the claim are limited to the value of the property claimant alleges was removed from his cell and not returned. Mr. Tumminia's testimony, therefore, is not relevant to the prosecution of the instant bailment claim. Based on the foregoing, claimant's motion is denied.
July 7, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The following papers were considered:
1. Affidavit of Raheme Byrd sworn to April 26, 2017, with exhibits;
2. Affirmation of Glenn C. King, Esq., dated June 26, 2017, with exhibits;
3. Statement of Raheme Byrd dated June 26, 2017.