Claimant's motion for summary judgment in bailment claim is denied where issues of fact exist, pursuant to inmate property regulations, as to whether allegedly lost 1989-1990 trial transcripts are of any use or value in any pending or future legal proceeding and as to cost and/or possibility of replacing the trial transcripts.
|Claimant(s):||GLASCO WRIGHT, 90-A-6050|
|Claimant short name:||WRIGHT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||GLASCO WRIGHT
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 28, 2021|
|See also (multicaptioned case)|
Claimant moves for summary judgment asserting, among other things, that the defendant's "defenses have no merit due to defendant having voluntarily withdrawn the remaining affirmative defenses."
Defendant opposes the claimant's motion.
"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]).
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]).
The claim was served on June 15, 2018 and alleges that defendant lost or destroyed certain of claimant's criminal trial transcripts, dating from 1989-1990. Claimant's administrative claim for compensation (7 NYCRR Part 1700, et al) was, according to the claim, denied on April 30, 2018.
Defendant's answer, after dismissal of certain defenses and withdrawal of other defenses, denies the claim's essential allegations and, contrary to claimant's affidavit, includes the following defense alleging the limitation and/or elimination of claimant's recovery pursuant to the applicable inmate lost property regulation:
"To the extent that the value of the property exceeded the limitations set forth in [Department of Correction and Community Services] directives, any recovery shall be correspondingly limited."
The applicable inmate property regulation, 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."
Even assuming claimant has met his initial burden to show that defendant is responsible for the loss of the 1989-1990 trial transcripts, an issue of fact exists as to whether the subject trial transcripts are of any use or value in any pending or future legal proceeding. In that regard, claimant's exhibits which are attached to claimant's reply affidavit, apparently in an attempt to demonstrate the potential for use of the trial transcripts, never actually mention claimant's allegedly lost trial transcripts. Additionally, claimant has not proven any specific cost of replacing the trial transcripts or whether it is even possible to replace the allegedly lost trial transcripts (see Wright v State of New York, 192 AD3d 1277, 1279-80 [3d Dept 2021]).
The claimant's motion is denied.
October 28, 2021
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Notice of Motion for Summary Judgment by Claimant, filed September 14, 2021;
2. Affidavit of Glasco Wright, sworn to September 10, 2021, and attached exhibits;
3. Affirmation in Opposition of Motion for Summary Judgment of Glenn C. King, dated October 5, 2021, and attached exhibits;
4. Claimant's Reply Affidavit, sworn to October 12, 2021, and attached exhibits.