On or about August 15, 2003, Plaintiff, ERNEST BURTON, was arrested by members of the Syracuse Police Department and subsequently transported and jailed in the Onondaga County Justice Center. Pursuant to procedure at the Onondaga County Justice Center, Plaintiff was booked and processed by deputies, members, or contract employees of the Onondaga County Sheriff's Department or the County of Onondaga. Plaintiff, pursuant to booking protocol, was compelled to surrender his clothing and personal possessions and belongings to Defendant and was given a receipt for same. Upon his release from confinement, on or about August 20, 2003, Plaintiff presented to Defendant his property receipt and requested the return of his property. Defendant only returned to Plaintiff his shoes, pants, shirt and subsequently a check for $0.32 cents. However, certain items of jewelry and other personal property set forth in the receipt were not returned by Defendant as it was noted by Defendant on the receipt that "...property bag missing." [*2]

Thereafter, Plaintiff timely filed a Notice of Claim and, subsequently, commenced this action by the filing of a Summons and Verified Complaint in May of 2004. Defendant interposed a Verified Answer dated June 9, 2004. No discovery has been conducted by the parties except for the service by Plaintiff of a Demand for Bill of Particulars to which Defendant has never responded.

Plaintiff has now brought on this motion seeking partial summary judgment as to liability on the theory that Defendant, as bailee of his personal property, is liable to him for the value of said property under the theory of conversion as Defendant has failed to return said property to him, the receipt of which Defendant has acknowledged. The Defendant opposes this motion and in opposition submits an "attorney's affidavit in opposition and in support of cross motion to dismiss." In addition to opposing Plaintiff's motion for partial summary judgment, Defendant seeks summary judgment dismissing Plaintiff's complaint and "all cross-claims" against the Defendant.

Unfortunately for the County, no Notice of Cross Motion was ever filed on its behalf; therefore, there is no Cross-Motion before the Court for consideration. Also, there are no cross claims against the County for this Court to address as the County is the only Defendant in this action, and the County certainly did not cross claim against itself.

In a motion for summary judgment, the moving party must come forth with evidence in admissible form to establish the absence of any factual issues. The burden will next shift to the non-moving party (Defendant, County of Onondaga, in this instance), to likewise come forth with evidence in admissible form to show the existence of a question of fact. The Court in such a motion must view all of the evidence so presented in the light most favorable to the non-moving party. ZUCKERMAN v. CITY OF NEW YORK, 49 NY2d 557 (1980).

The Plaintiff has met his initial burden of proof. The County , on the other hand, has not met its shifting burden, even when the Court views the evidence in the light most favorable to the County.

To establish a cause of action for conversion, a Plaintiff must establish legal ownership of a specific identifiable piece of property and Defendant's exercise of dominion over or interference with said property in defiance of Plaintiff's rights thereto. Intent to possess another's property is not an essential element of conversion. AHLES et al v. AZTEC ENTERPRISES, INC., 120 AD2d 903 (3d Dept. 1986); GENERAL ELEC. CO. v. AMERICAN EXPORT ISBRANDTSEN LINES, 37 AD2d 959 (2d Dept. 1971).

Based on the record, Plaintiff established that his jewelry and other items of personal property were left in the possession of Defendant pursuant to Defendant's booking procedure; that a receipt was given to Plaintiff by Defendant acknowledging possession of said property; and, that Defendant failed to return said property to Plaintiff upon his proper demand. By this scenario, Plaintiff establishes a prima facie case for both negligence and/or conversion. ICC METALS, INC. v. MUNICIPAL WAREHOUSE CO., 50 NY2d 657 (1980). [*3]

To adequately respond so as to defeat Plaintiff's motion for partial summary judgment, Defendant needed to come forth with competent evidence to explain what happened to Plaintiff's property. Such an explanation would necessarily have to be supported by evidence in admissible form and not based merely on speculation and/or conjecture. An explanation of mysterious dis-appearance or a bare allegation of criminal acts by a third party are totally inadequate. DAMAST v. NEW CONCEPTS IN JEWELRY, LTD, 86 AD2d 886 (2d Dept. 1982). Moreover, a party cannot meet its burden of proof by merely alleging that its opponent cannot prove its case. ORCUTT v. AMERICAN LINEN SUPPLY CO., 212 AD2d 979, (4th Dept. 1995); EDWARDS v. ARLINGTON MALL ASSOCIATES, 6 AD3d 1136 (4th Dept. 2004). Defendant offered no credible, non-speculative explanation for its failure to return Plaintiff's secured property and merely attempted to allege that Plaintiff could not establish a conversion.

Therefore, by reason of the foregoing, Plaintiff's motion for partial summary judgment as to liability is hereby granted and the matter shall be scheduled for trial on issue of damages; AND IT IS SO ORDERED.

ENTER

______________________________

Anthony J. Paris

J.S.C.

Dated: May 29, 2008

Syracuse, New York