Defendant, the City of New York s/h/a the City of New York its Employees and Agents (hereinafter "City") moves inter alia for summary judgment, dismissing plaintiff's complaint as asserted against it. Plaintiff cross-moves inter alia for summary judgment on the issue of liability.

This is an action to recover damages allegedly sustained by plaintiff on September 13, 2010 when he was informed that his computers had been destroyed while in the custody of the New York Police Department (hereinafter "NYPD") when he attempted to reclaim the same at the property clerk's office in the County of Queens, City and State of New York.

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an material issues of fact from the case . . ." (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [*2][1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

It is undisputed that plaintiff's cause of action accrued on September 13, 2010 when he attempted to reclaim his computers and was informed that they had been destroyed..

Pursuant to General Municipal Law (GML) § 50-i, any action against the city for damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of the city shall be commenced within one year and ninety days after the cause of action accrued. This action, was commenced on January 23, 2012, more than one month after the expiration of this time period.

However, contrary to the City's contentions, the statute of limitations in GML § 50-i is not applicable to this action. Defendant's lawful seizure of plaintiff's property without an intent to appropriate created a constructive bailment by operation of law (See Thomas v. Grupposo, 73 Misc 2d 427, 430 [NY City Civ. Ct. NY County 1973]; see generally Pivar v. Graduate Sch. of Figurative Art of the NY Acad. of Art, 290 AD2d 212, 212-13 [1st Dept. 2002]; Martin v. Briggs, 235 AD2d 192, 197 [1st Dept. 1997]). The statute of limitations applicable to an action for breach of a bailment is six years (See Rodriguez v. Central Parking System of New York, Inc., 17 Misc 3d 108, 109-10 [App. Term 1st Dept. 2007]). As such, plaintiff's action was timely commenced.

The mere fact that plaintiff's complaint alleges that defendant was negligent and failed to use due care in performance of the bailment does not change the applicable statute of limitations (See Rodriguez, supra, at 110).

Defendants are generally correct that when determining the applicable statute of limitations, court should look to the "essence" of the action such that even if a wrong complained of arose out of a contractual obligation, a negligence statute of limitations should be used if the allegations essentially consist of a failure to use due care in the performance of the obligation (See Paver & Wildfoerster v. Catholic High Sch. Ass'n., 38 NY2d 669, 674-75 [1976]). However, the Court of Appeals has disavowed the blanket application of the essence of the action rule beyond personal injury actions (see Baratta v. Kozlowski, 94 AD2d 454, 461 [2d Dept. 1983]).

Plaintiff here has elected to sue in contract and inasmuch as the claim here is for property damage, the relationship between the parties had its genesis in the contractual relationship created by the constructive bailment and the events giving rise to this action directly implicate that relationship, the six year statute of limitations is appropriate (Novita LLC v. 307 W. Rest Corp., 35 AD3d 234 [1st Dept. 20006]). [*3]

However, plaintiff contention that he is entitled to judgment on the issue of liability because defendant's answer did not dispute that plaintiff's computers were destroyed and defendant's failure to provide an explanation for this destruction raises a presumption that defendant's were negligent in their performance of the constructive bailment is without merit, since defendant's answer does not admit that plaintiff's computers were destroyed.

Further, pursuant to CPLR § 3212[b], "[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions," no of which plaintiff has supplied to establish the allegations in the complaint.

It is well settled that the affirmation of an attorney who lacks personal knowledge of the facts alleged in the complaint is insufficient (See Mikelatos v. Theofilaktidis, 2013 NY App. Div. LEXIS 2321 at *4 [2d Dept. April 10, 2013]; Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2d Dept. 2006]).

Accordingly defendant's motion and plaintiff's cross-motion are denied, in their entirety.

May 1, 2013 ____________________

J.S.C.