                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: April 28, 2016                      520065
________________________________

KEITH McDAY,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   March 25, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                               __________


     Keith McDay, Comstock, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.
Lang of counsel), for respondent.

                               __________


Lynch, J.

      Appeal from an order of the Court of Claims (Hard, J.),
entered September 24, 2014, which denied claimant's motion for
summary judgment.

      Claimant, a prison inmate, brought this claim contending,
among other things, that defendant failed to return a television
that was taken from his cell by the Department of Corrections and
Community Supervision when he was transferred into the special
housing unit. Following joinder of issue, claimant moved for
summary judgment. The Court of Claims denied the motion and this
appeal by claimant ensued.

      We affirm. The drastic remedy of summary judgment should
only be granted where there is no doubt as to the existence of a
triable issue of fact (see Encarnacion v State of New York, 49
                             -2-                   520065

AD3d 1038, 1039 [2008]). Upon viewing the proof in a light most
favorable to the nonmoving party, "[t]he court's function on a
motion for summary judgment is issue finding not issue
determination and, where a genuine issue of fact exists, summary
judgment must be denied" (Gadani v Dormitory Auth. of State of
N.Y., 43 AD3d 1218, 1219 [2007]). Here, there is ambiguity as to
claimant's rightful possession of the television, which precludes
summary judgment. Specifically, although claimant had a permit
authorizing him to possess a television, defendant asserts that
the serial number on the television at issue does not match the
serial number on claimant's permit. Defendant also asserts that
correction facility rules prohibit claimant from having a
television in the special housing unit. As questions of fact
exist as to whether defendant was negligent in not returning the
television to claimant, the Court of Claims properly denied
claimant's motion for summary judgment (see Encarnacion v State
of New York, 49 AD3d at 1039).

     McCarthy, J.P., Garry, Devine and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
