Claimant Nicholas Serrano, an incarcerated individual in the custody of the Department of Corrections and Community Supervision (DOCCS), filed this bailment claim (see Court of Claims Act § 10[9]), alleging that, while claimant was confined in the Special Housing Unit (SHU) at Washington Correctional Facility in 2021, DOCCS employees lost 20 packs of claimant's cigarettes valued at $250. Claimant now moves, pursuant to CPLR 3211(b), to dismiss all six of defendant's affirmative defenses asserted in its answer. Defendant opposes the motion.

After reviewing the documents submitted by claimant for the purposes of demonstrating that the affirmative defenses asserted by defendant are without merit, as well as the documents attached as exhibits to defendant's opposition, it appears that this matter may be amenable to summary resolution. These documents—all but one of which are copies of records maintained by DOCCS—appear to demonstrate the following facts: (1) claimant was in SHU confinement when the cigarettes were received at Washington by agents of defendant on August 23, 2021; (2) individuals placed in SHU are not permitted to have cigarettes in their cells and, thus, claimant's cigarettes were required to be placed with claimant's other property in defendant's care; (3) claimant was transferred directly from SHU in Washington to SHU at Franklin Correctional Facility on September 17, 2021; (4) claimant's cigarettes never made it from claimant's stored [*2]property at Washington to Franklin, were never returned to claimant, and claimant did not authorize their disposal; and (5) the cigarettes were purchased for $250. Although defendant asserts in opposition to the motion that material issues of fact are in dispute, it has not specified at this early stage what those facts are; nor has it otherwise opposed the substance of claimant's arguments.

Thus, the Court finds it appropriate to exercise its discretion and convert Claimant's motion to one for summary judgment pursuant to CPLR 3211(c). The parties are hereby notified of the Court's intention to do so (see Mihlovan v Grozavu, 72 NY2d 506 [1988]; Four Seasons Hotel Ltd. v Vinnik, 127 AD2d 310, 319-320 [1st Dept 1987]; Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 258 [2d Dept 2012]). The converted motion shall be returnable on the date which is eight weeks from the filing date of this decision and order. All submissions filed to date in relation to claimant's original motion shall be deemed submitted as of the return date of the now converted motion for summary judgment. And in accordance with the time periods specified below, claimant may make an additional submission and add to any evidence already submitted, whereupon defendant may, if it chooses to do so, submit proof in opposition to claimant's now converted motion for summary judgment.

Accordingly, it is hereby

ORDERED, that claimant's motion is converted to a motion for summary judgment, returnable April 26, 2023; and it is further

ORDERED, that any additional submissions by claimant shall be filed by March 29, 2023, and any opposition to the converted motion by defendant shall be filed in accordance with the provisions of CPLR 2214.