Inmate claimant's motion for summary judgment in bailment claim denied without prejudice.
|Claimant short name:||DANIELS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||CHARLES DANIELS, pro se|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
BY: Peter DeLucia, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 17, 2019|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, filed this claim to recover for the cost of a pair of sneakers which had been shipped to him at Elmira Correctional Facility (Elmira), but which he allegedly was not allowed to have in his possession. Claimant asserts that he paid the appropriate postage to have Elmira return the sneakers to the seller. However, the seller apparently did not receive the package and did not refund claimant's money. Defendant State of New York (defendant) answered and asserted several affirmative defenses. Claimant now moves for summary judgment. Defendant opposes the motion.
Claimant argues that defendant had exclusive possession and control of the sneakers at all times. Claimant contends that defendant failed to return them to the seller pursuant to his directions and is liable for their cost.
Conversely, defendant states that Elmira returned the sneakers at claimant's request, but asserts there are questions of fact as to whether claimant provided the correct address. Defendant also argues that because claimant indicates that the sneakers were insured, there are questions of fact concerning damages since he may have already been reimbursed.
Claimant, as the proponent of a summary judgment motion, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New York, 49 NY2d 557, 562 ). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853).
A bailment is created when personal property is delivered into the hands of another, who is then expected to return it in the same condition on demand (Claflin v Meyer, 75 NY 260, 262 ). Defendant has an obligation to secure an inmate's personal property (Pollard v State of New York, 173 AD2d 906 [3d Dept 1991]). Once a claimant meets the burden of proving that his property was deposited with the defendant and that the latter failed to either return it or dispose of it as authorized, the burden shifts to the defendant to overcome the presumption of its negligence (Weinberg v D-M Rest. Corp., 60 AD2d 550 [1st Dept 1977]; Gillard v State of New York, UID No. 2010-044-008 [Ct Cl, Schaewe, J., June 21, 2010]).
Claimant has provided his affidavit in support of this motion. Claimant states that on March 7, 2018, he ordered a pair of New Balance sneakers from Union Supply Direct (Union Supply) for $57.90. He indicates that on March 31, 2018, he was called to the package room and informed that he could not have the sneakers. He notes that he elected to have the sneakers returned at his expense for a refund. Claimant states that after waiting several weeks without a refund, he contacted Union Supply. By letter dated May 9, 2018, Union Supply advised claimant that his order was shipped and Officer S. Sharp signed for the package at 12:19 p.m. on March 29, 2018. By letter dated May 29, 2018, Union Supply advised claimant that because the sneakers were never received, the company would not issue a refund. Claimant indicates that he then filed an institutional claim which was denied. His appeal was also denied, prompting him to file this claim.
In support of his motion, claimant has provided copies of his disbursement request in the amount of $57.90 and the receipt from Union Supply showing the purchase of black/gray New Balance Sneakers. Claimant has included a copy of the Authorization for Disposal of Personal Property which indicates that claimant was not allowed to have the sneakers because they contained inside pockets, and that claimant had chosen to return them to Union Supply. The authorization was signed by both claimant and a correction officer.
Claimant has further submitted a copy of Facility Claim No. 110-0057-18. In the facility claim, claimant requested reimbursement of $57.90 for the sneakers and $14.00 for the return postage for a total of $71.90. The claim was disapproved with the notation "per investigation . . . the outgoing package was logged [and] claimant needs to address non-receipt with the company and/or USPS for tracking."(1) In his appeal statement, claimant asserted that the package room officer was solely responsible for the sneakers and essentially argued that claimant did everything he could to return them properly, including paying postage and insuring them. Although no reason was given, claimant's appeal was also disapproved.
Claimant has established that his personal property was delivered into defendant's possession and that when he was advised it could not be given to him, he chose to return it to the seller for a refund. Claimant has provided proof through his sworn statement that he paid the return postage and has also shown that the sneakers never arrived at their destination. The Court finds that claimant has met his initial burden of establishing entitlement to judgment as a matter of law.
The burden now shifts to defendant to overcome the presumption of its negligence in handling claimant's property. Defendant has submitted the affidavit of Sergeant W. Ashton who states that he was the correction officer in the package room on March 30, 2018 when claimant received the sneakers. Ashton indicates that claimant chose to return the sneakers to Union Supply at his expense and Ashton review and signed the authorization of disposal form. Ashton notes that in June 2018 he was assigned to investigate claimant's facility claim concerning the sneakers. He states that he reviewed records and discovered that the sneakers "were returned and delivered on April 7, 2018 per [claimant's] request to a post office box in Compton, California from . . . Elmira."(2)
Claimant's invoice and letters from Union Supply Direct indicate that the company's address was P.O. Box 9018, Rancho Dominguez, CA 90224-9018. However, defendant has provided evidence that the package was sent to Compton, CA, rather than Rancho Dominguez, CA. Without any evidence that returned merchandise was to be mailed to a different address, the Court finds that this information creates a material question of fact as to whether claimant provided the correct address for the return.(3)
Accordingly, summary judgment is inappropriate on this record and claimant's motion is denied.(4) However, the denial is without prejudice to claimant making a second motion for summary judgment which contains evidence concerning the address to be used for returning merchandise to Union Supply as well as the address to which claimant requested that the sneakers be sent. Claimant may also include additional evidence pertaining to the insurance issue to address any question of damages.
In conclusion, claimant's Motion No. M-93557 is denied, without prejudice to a second motion.
April 17, 2019
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Notice of Motion filed February 15, 2019; Affidavit of Charles Daniels, sworn to February 1, 2019, and attached exhibits; Supporting Memorandum of Charles Daniels, sworn to February 1, 2019.
2) Affirmation in Opposition of Peter DeLucia, AAG, dated March 26, 2019, and attached exhibits.
Filed Papers: Claim filed September 12, 2018; Verified Answer filed October 22, 2018.
1. Affidavit of Charles Daniels, sworn to February 1, 2019, in Support of Motion, Exhibit H.
2. Affirmation of Assistant Attorney General (AAG) Peter DeLucia, dated March 26, 2019, Exhibit B, ¶ 4.
3. The Court notes that neither party provided a copy of claimant's disbursement for the $14.00 of postage which presumably would have contained the Compton mailing address.
4. Moreover, as defendant accurately notes, claimant stated in his facility claim that he insured the merchandise. However, he does not indicate if he pursued an insurance claim, and if so, whether he recovered any damages. The Court finds that there is also a question of fact pertaining to the amount of damages.