| Encarnacion v State of New York |
| 2008 NY Slip Op 02517 [49 AD3d 1038] |
| March 20, 2008 |
| Appellate Division, Third Department |
| Bernabe Encarnacion, Appellant, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (William E. Storrs of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Court of Claims (Schaewe, J.), entered December15, 2006, which denied claimant's motion for partial summary judgment.
Claimant brought this action contending, among other things, that defendant was responsiblefor the value of items of personal property taken and not returned by employees of theDepartment of Correctional Services. He made a motion denoted as one for partial summaryjudgment (although he sought judgment on both liability and damages). The Court of Claimsdenied the motion and claimant now appeals.
The drastic relief of "[s]ummary judgment should not be granted where there is any doubt asto the existence of a triable issue" (McIntyre v State of New York, 142 AD2d 856, 858[1988]; see Peterson v State of New York, 130 AD2d 813, 814 [1987]). The proofpresented is viewed in the light most favorable to the nonmovant (see Card v Brown, 43 AD3d 594,595 [2007]; Walton v Albany Community Dev. Agency, 279 AD2d 93, 94-95 [2001]).Review of the record in the light most favorable to defendant reveals that factual issues abound.The issue of who owned the law books removed from claimant's cell is not sufficientlyestablished. The $100 that claimant contends was wrongfully deducted from his inmate accountis disputed by defendant's assertion that such amount was never taken from his account. Theevidence is unclear regarding the alleged removal from claimant's cell of legal materials inyellow envelopes and, if removed, whether such materials were returned to claimant. In light ofthe factual issues, [*2]the Court of Claims properly deniedclaimant's motion.
Cardona, P.J., Carpinello, Kane and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.