Robert DeRosario seeks summary judgment on his claim for personal property that was lost at Sullivan Correctional Facility when he was placed in its special housing unit (SHU). According to Mr. DeRosario's claim, this is the sequence of events:

* June 3, 2015, 8 p.m, he was taken from his cell to SHU.

* June 19, DeRosario was returned to his cell, but without his property.

* June 24, Claimant was directed to report to the draft area, where three and a half bags of his property were put on a table.

[Paragraph 7 of the claim, which is exhibit A to defendant's Affirmation in Opposition].

Mr. DeRosario stated that: "At no time was claimant's property inventoried in his presence, nor did he ever receive an I-64 form (listing such) upon his arrival or exit of SHU" (page 5 of the claim). The claim had indicated that when taken to SHU on June 3, his cell was searched outside of his presence.

DeRosario determined that several of his items were missing and submitted an Inmate Claim Form to the facility, which was denied (exhibit 1-A to the claim, defendant's Affirmation in Opposition). The Inmate Claim Form listed ten items, including a fan, hot pot, headphones, [*2]tobacco and toiletries - - with a total amount, valued at cost, as $60.61.

The defendant State of New York opposes Mr. DeRosario's motion, asserting that there are material issues of fact still to be determined. Defendant supplies an I-64 Personal Property Transfer form, which lists claimant's property on June 3, 2015 and has an inmate signature dated June 6 (id., exhibit C). Claimant, in what is effectively his reply, denies that he ever received an I-64 at any time from June 3 through June 19, 2015 (DeRosario letter, dated October 10, 2016).

Taking the I-64 at face value in order to compare its list with claimant's Inmate Claim Form: some items are on both forms, such as the hot pot and headphones, although a notation on the I-64 indicates that the headphones were broken. But some items that DeRosario entered on his claim form are not on the I-64 defendant proffered, including the fan and two pouches of tobacco.

New York State's rules and regulations that cover the Department of Corrections and Community Supervision (DOCCS) contain principles that apply to inmate property claims. This includes:

* The inmate must be able to prove ownership or possession in some reasonable fashion, such as with a package room or commissary receipt (22 NYCRR § 1700.6 [c]).

* When property was last in control of the inmate, without a specific showing of facility negligence, there is no presumption that an unexplained loss was the fault of the facility or its employees (id., § 1700.7 [a]).

* When property last in control of the facility is not returned to the inmate without a good explanation, there is a presumption - - which can be rebutted - - that DOCCS is responsible for the loss (id., § 1700.7 [b]).

In view of the foregoing, the Court finds that there are significant or material issues of fact in dispute, and therefore, this case cannot be resolved by summary judgment.

As noted, the totaled value in the claim was $60.61, and Mr. DeRosario stated therein that he was seeking that amount plus any related fees. In his motion, claimant says he is due $137.57 with interest from June 25, 2015. DeRosario maintains that on December 5, 2015, a Deputy Superintendent came to his cell, apologized for the mixup and offered to settle (paragraph 7 of claimant's October 10, 2016 letter).

The Court would advise the parties that the better course here is to try to settle this matter, without the need for trial.

In view of the foregoing, and having reviewed the submissions of the parties,^[FN1] IT IS ORDERED that motion No. M-89278 is denied.