Opinion
# 2013-048-086 Claim No. 121663 Motion No. M-82343 Cross-Motion No. CM-82437
03-06-2013
JASON O. THOMPSON v. THE STATE OF NEW YORK
Synopsis
The Court granted Claimant's cross-motion for summary judgment on a bailment claim and awarded Claimant $65.00.
Case information
UID: 2013-048-086 Claimant(s): JASON O. THOMPSON Claimant short name: THOMPSON Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121663 Motion number(s): M-82343 Cross-motion number(s): CM-82437 Judge: GLEN T. BRUENING Claimant's attorney: JASON O. THOMPSON, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Paul F. Cagino, Esq. Assistant Attorney General Third-party defendant's attorney: Signature date: March 6, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant, Jason O. Thompson, commenced this action on August 23, 2012, sounding in negligent bailment alleging that Defendant is responsible for the loss of certain personal property while he was incarcerated at Eastern Correctional Facility (Eastern) located in Napanoch, Ulster County, under the supervision of the Department of Corrections and Community Supervision (DOCCS). Specifically, Claimant alleges that certain legal materials were improperly destroyed after he was admitted into Eastern's Special Housing Unit (SHU) on January 18, 2012. Defendant now moves for an order dismissing the Claim pursuant to CPLR §§ 3211 (a) (2) and (8) for lack of personal and subject matter jurisdiction based on Claimant's failure to exhaust his administrative remedies pursuant to Court of Claims Act § 10 (9). Claimant opposes Defendant's motion and cross-moves for summary judgment on the Claim (see Notice of Motion, filed November 16, 2012).Defendant opposes Claimant's cross motion and, in doing so, has withdrawn its motion seeking dismissal of the Claim (see Affirmation of Paul F. Cagino, Esq., dated December 5, 2012, paragraph 10). Accordingly, the only motion before the Court is Claimant's cross motion.
To the extent that Claimant also seeks an order "striking out the unadmitted parts of defendant's Answer" (Notice of Motion, filed November 16, 2012), the Court notes that the CPLR does not authorize a motion to strike denials contained in a responsive pleading (see Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C3212:36).
As movant for summary judgment, Claimant bears the initial burden of establishing his right to summary judgment as a matter of law by tendering sufficient evidence, in admissible form, to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp ., 68 NY2d 320, 324 [1986]). In this regard, "conclusory assertions are insufficient to demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]), and the failure to make the initial prima facie showing requires the denial of Claimant's motion, "regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If, however, Claimant meets this burden, the burden then shifts to Defendant to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, so as to necessitate a trial (Alvarez, 68 NY2d at 324).
According to the Claim, on January 18, 2012, Claimant was taken to Eastern's SHU and searched. Claimant alleges that certain legal documents were impermissibly destroyed. Claimant seeks to recover a total of $5,120.00 and alleges that the costs associated with the destruction of his legal materials total $65.00, but that he seeks $120.00 to "cover the hassle" of this matter, together with an additional $5,000.00 in "punitive fees" (Claim, page 5). In support of his cross motion, Claimant submits a sworn affidavit attesting to his loss in the amount of "at least $65.00" and attaches a copy of his Inmate Claim Form, dated February 8, 2012, in which he sought $65.00 for the loss of 10 legal briefs, claim and grievance complaint records (Affidavit of Jason O. Thompson, sworn to on November 6, 2012, page 2). In the description of the loss made part of his claim, Claimant asserted, among other things, that, in conjunction with his admission to the SHU, Correction Officer Sipley set certain documents aside, alleged by Claimant to be legal work, because the officer was unsure how Claimant could be in possession of such materials since they related to other individuals. Claimant asserted that Officer Sipley advised that Claimant could review two bins of paperwork. However, Claimant was later advised by Officer Meinecke that he could either send two bins of property home or destroy them. Claimant opted to send the majority of his items home, and reluctantly signed a "destruction of property form" with respect to his remaining property. However, Claimant did not believe his legal materials were among the materials being destroyed (Affidavit of Jason O. Thompson, sworn to on November 6, 2012, Exhibit B attachment, pages 3 and 4). Attached to the administrative claim are the following documents: 1) a copy of a form from the New York State Library's "Prisoner Services Project," by which an inmate may request copies of legal articles and court decisions, among other things; 2) copies of various correspondence, all dated in 2004, by which Claimant sought, paid for (in the amount of $42.00), and received records regarding Schenectady County "IND. 392-14"; 3) a Freedom of Information Law (FOIL) response from Suffolk County Clerk advising that Claimant's FOIL request could not be processed; 4) correspondence from Claimant requesting a courtesy copy of a decision rendered by Suffolk County Judge Cacciabaudo in a case entitled People v Ralph Palermo; and 5) correspondence from the Monroe County Public Defender's Office enclosing a copy of "the Brief I submitted for Mr. Gonzalez in hopes that it may assist you in your efforts" (Affidavit of Jason O. Thompson, sworn to on November 6, 2012, Exhibit B).
Claimant also points to Defendant's Answer, through which Defendant admits paragraph 12 of the Claim which alleges "[t]he particular of the damages being sought by the claimant at bar, are being reiterated in full as outlined in ¶ 10 of claimant's pleadings before this Court of Claims" (Affirmation of Paul F. Cagino, Esq., dated October 26, 2012, Exhibit A). Paragraph 10 of the Claim sets forth the type and amount damages sought by Claimant. By this admission, Claimant contends that Defendant has not refuted that an injury occurred and the amount of monetary relief sought. However, Defendant's Counsel argues that the admission of paragraph 12 of the Claim was inadvertent and, in any event, simply reiterates the allegations in paragraph 10 that were expressly denied. Claimant also argues that by its first affirmative defense - asserting Claimant's culpable conduct - Defendant does not argue that no award should be granted, and that Defendant's second and third affirmative defenses - asserting the culpable conduct of a third party and alleging that Claimant has failed to exhaust his administrative remedies - are without merit.
In a bailment action such as the instant action, Claimant has the burden of establishing that Defendant took possession of the property and failed to return it (see Weinberg v D-M Rest. Corp., 60 AD2d 550, 550 [1st Dept 1977]). If this burden is met, there is a presumption of liability on the part of Defendant, and the burden then shifts to Defendant to overcome that presumption by establishing a non-negligent explanation for the loss (see Maisel v Gruner & Jahr USA, 89 AD2d 503, 504 [1st Dept 1982]) or by demonstrating that it exercised ordinary care (see Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049, 1050 [3d Dept 1981]). With respect to damages sustained based on the loss of bailed property, Claimant must establish the fair market value of the property, that is, the value of the original purchase price less depreciation (see Phillips v Catania, 155 AD2d 866, 866-867 [4th Dept 1989]).
Based on the evidence presented, Claimant has established his prima facie entitlement to summary judgment on the issue of liability as a matter of law by demonstrating that, upon his admission to the SHU, Defendant took possession of his legal papers and failed to return them. Moreover, through his Affidavit and its exhibits, the Court finds that Claimant established his prima facie entitlement to summary judgment on the issue of damages in the amount of $65.00. In contrast, Claimant failed to offer any proof of damages beyond the $65.00 claimed in his inmate claim form. Indeed, he merely inflated the $65.00 value by an arbitrary $55.00 to reach his demand of $120.00 for the loss of his papers in order to "cover the hassle" he experienced (Affidavit of Jason O. Thompson, sworn to on November 6, 2012, page 3). However, as the $55.00 sought does not relate to the value of property lost, it is not legally recoverable in this bailment action. Similarly, the $5,000.00 in punitive damages is also not recoverable (see Sharapata v Town of Islip, 56 NY2d 332, 338 [1982]). Thus, the burden shifts to Defendant to rebut Claimant's prima facie entitlement to summary judgment on the issue of liability and damages in the amount of $65.00.
In opposition to Claimant's cross motion, Defendant attaches documents relating to the investigation into Claimant's property loss, including, among other documents, a statement from Officer Meinecke, who denies forcing Claimant to sign a disposal of property form. By these documents, Defendant argues that no loss, damage or negligence was caused by DOCCS staff, and that Claimant's cross motion should be denied. However, these unsworn documents are not in admissible form (see Affirmation of Paul F. Cagino, Esq., dated December 5, 2012; see also Villager Constr. v Kozel & Son, 222 AD2d 1018, 1018-1019 [4th Dept 1995]), and counsel's affidavit lacks evidentiary value since the facts asserted therein are not based on personal knowledge (see Hubbard v County of Madison, 93 AD3d 939, 941 [3d Dept 2012], lv denied 19 NY3d 805 [2012]). In this regard, the facts appearing in Claimant's moving papers with respect to liability and damages in the amount of $65.00 are deemed to be admitted for purposes of Claimant's cross motion (see Kuehne & Nagel v Baiden, 36 NY2d 539, 544 [1975]). Based on the foregoing, the Court finds that Defendant has failed to rebut Claimant's prima facie entitlement to summary judgment on liability and damages in the amount of $65.00 as a matter of law.
Accordingly, Claimant's Cross Motion CM-82437 for summary judgment is granted on the issue of liability and damages in the amount of $65.00 with interest from March 15, 2012, and the remainder of this Claim is dismissed. To the extent that Claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).
Let judgment be entered accordingly.
March 6, 2013
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed August 23, 2012;
Defendant's Notice of Motion, filed October 26, 2012;
Affirmation of Paul F. Cagino, Esq., dated October 26, 2012, with Exhibits A-B;
Claimant's Notice of Motion for Summary Judgment, filed November 16, 2012;
Claimant's Notice of Motion Rebutting Defendant's Motion to Dismiss, dated November 6, 2012;
"Affidavit" in Support of Notice of Motion Rebutting Defendant's Motion to Dismiss, dated November 6, 2012, with Exhibit A;
Affidavit in Support of Motion for Summary Judgment Pursuant to CPLR 3212, sworn to on November 6, 2012, with Exhibits A-D;
Correspondence from Claimant, filed November 23, 2012, with Exhibits A-B;
Affirmation of Paul F. Cagino, Esq., in Opposition to Claimant's Cross Motion for Summary Judgment and to Strike Affirmative Defenses, dated December 5, 2012, with attached documents consisting of 13 pages.