New York State Court of Claims

New York State Court of Claims
RUCANO v. THE STATE OF NEW YORK, # 2018-041-079, Claim No. 128599, Motion No. M-92729


Claimant's motion for summary judgment on bailment claim is denied where claimant fails to prove, as a matter of law, that the property (legal papers) was lost or destroyed while in defendant's custody and control and fails to show that the allegedly lost legal papers had any value in a pending or future legal proceeding.

Case information

UID: 2018-041-079
Claimant short name: RUCANO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 128599
Motion number(s): M-92729
Cross-motion number(s):
Claimant's attorney: ANTHONY RUCANO
Pro Se
Defendant's attorney: HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 27, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant moves for summary judgment in this inmate lost property claim. Defendant opposes the claimant's motion.

The claim, and claimant's motion papers, set forth lengthy, confusing and conclusory allegations as to claimant's purported loss of personal property during claimant's transfer from Clinton Correctional Facility to Upstate Correctional Facility. Claimant has, apparently, successfully pursued an inmate grievance with respect to the alleged loss of his property, with the exception of "10,000 pages of legal documents." 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 (Ct Cl August 14, 2006, UID #2006-032-511, Hard, J.)(1) ; 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]).

As a matter of procedure, 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]).

Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).

Summary judgment is a drastic remedy that "should not be granted where there is any doubt as to the existence of [triable] issues [of fact], or where the issue is arguable" (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] [internal quotation marks and citations omitted]; see Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept 2017]).

Further, "[i]t is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof)" (Vega v Restani Constr. Corp., 18 NY3d 499, 505 [2012]).

The Court "must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact" (Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).

In opposition to claimant's summary judgment motion, the defendant offers, among other things, documentary evidence showing that claimant signed a facility "Personal Property Transferred" form (Form 2064) on June 6, 2016 with no notation of missing items and which listed "all" legal work as present.

Additionally, 7 NYCRR 1700.8 (a) (4) discusses valuation of lost legal papers:

"Lost legal papers often have no value. If records in a criminal case are lost when there is no further right of appeal and no further use for them, then the records have no more than 'sentimental value,' that is, no value. If the lost legal papers can still be used, for example, in a pending or future legal proceeding, then the loss may be compensated by either replacing the papers or paying the reasonable cost to reproduce them. If an inmate can obtain replacement copies for no cost, then the lost papers have no value. If an inmate claims that there is a cost to reproduce the lost papers, then the inmate should produce an estimate for the cost to reproduce the lost papers, which normally should not exceed the cost shown in the bill for the original papers."

Claimant has not shown, in either his claim, or in his affidavit supporting his summary judgment motion, that the allegedly lost legal papers (dating from legal proceedings in 2010-2011) are of any use or value in any pending or future legal proceeding. In this regard, the "appellate attorney" letter provided by claimant is from April 2012, over 6 years ago.

Finally, a bailment claim sounds in negligence and the Court is well aware that "negligence cases do not usually lend themselves to summary judgment" (Smith v Moore, 227 AD2d 854, 855 [3d Dept 1996]). Consequently, the claimant in a negligence action "will generally be entitled to summary judgment 'only in cases in which there is no conflict at all in the evidence, the defendant's conduct fell far below any permissible standard of due care, and the plaintiff's conduct either was not really involved (such as with a passenger) or was clearly of exemplary prudence in the circumstances'" (Andre v Pomeroy, 35 NY2d 361, 365 [1974], citing 4 Weinstein-Korn-Miller, N Y Civ Prac, par 3212.03).

Put simply, the determination in a negligence action as to whether a defendant's conduct falls short of the standard of ordinary care is an issue that "'can rarely be decided as a matter of law'" (Ugarriza v Schmieder, 46 NY2d 471, 475 [1979], quoting Andre, 35 NY2d at 364).

The Court finds that questions of fact exist, precluding summary judgment.

Claimant's motion for summary judgment is denied.

November 27, 2018

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Claimant's Notice of Motion for Summary Judgment, filed August 20, 2018;

2. Affidavit of Anthony Rucano, sworn to August 13, 2018, and attached exhibits;

3. Affirmation in Opposition of Glenn C. King, dated September 19, 2018, and attached exhibits;

4. Reply Affidavit of Anthony Rucano, sworn to October 1, 2018.


This and other decisions of the Court of Claims are accessible at the Court of Claims website.