Opinion
# 2016-016-003 Claim No. None Motion No. M-87309
01-05-2016
MARK CROSS v. THE STATE OF NEW YORK
Mark Cross, Pro se Eric T. Schneiderman, Attorney General By: Aaron J. Marcus, AAG
Synopsis
Case information
| UID: | 2016-016-003 |
| Claimant(s): | MARK CROSS |
| Claimant short name: | CROSS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-87309 |
| Cross-motion number(s): | |
| Judge: | Alan C. Marin |
| Claimant's attorney: | Mark Cross, Pro se |
|---|---|
| Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Aaron J. Marcus, AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 5, 2016 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Mark Cross has made an application for permission to file a late claim arising from his 180-day confinement in the special housing unit (SHU) of Sullivan Correctional Facility. The application is opposed by the defendant State of New York.
The claim arose from the March 8, 2014 search of the trailer that was used by Mr. Cross for a family/conjugal visit. Two aluminum balls of foil were found in and around the furniture. They contained some 15 white tablets wrapped in plastic, imprinted with the markings M358, which a nurse on Sullivan's medical staff concluded were acetaminophen and hydrocodone.
Mr. Cross was initially issued two inmate misbehavior reports, which were combined into one report for claimant's tier III disciplinary hearing. These were not drugs that he had been prescribed or was otherwise permitted to have in the facility. The hearing began on March 14, was concluded April 3, 2014 with a finding of guilty on all counts, and claimant was penalized with a six-month assignment to SHU that began that day. The determination of the hearing officer was appealed to the central administration in Albany, where it was affirmed on May 30, 2014 by the Director of Special Housing/Inmate Discipline.
The inmate misbehavior reports are contained in exhibit A to defendant's Affirmation in Opposition to Motion for Permission to File a Late Claim.
Id., exh B.
Id., exh C.
Cross brought an Article 78 proceeding, which was transferred from Supreme Court to the Appellate Division. On August 6, 2015, the Third Department annulled the disciplinary determination:
"[T]he presented evidence was insufficient to establish compliance with the regulation governing the identification of substances suspected of being contraband drugs. When 'the substance is in tablet or capsule form, it shall be inspected at the facility pharmacy for possible identification' (7 NYCRR 1010.4[d]). The evidence establishes that the only pharmacy employee to have identified the substance as contraband drugs was a nurse who did so solely based upon an examination of photographs of the tablets. The unambiguous mandate of 7 NYCRR 1010.4[d] requires inspection of the substance, and it does not permit an inspection of a depiction of the substance. . . . In the absence of evidence that the tablets were identified as contraband drugs prior to proper procedure, substantial evidence does not support the findings of guilt . . . which depended on the identification of the tablets [citation omitted]."
[Matter of Cross v Annucci, 131 AD3d 758, 759 (3d Dept 2015).]
The Court directed the Department of Corrections and Community Supervision to expunge any references to the matter from Mr. Cross' institutional record. * * *
In deciding an application for a late claim under section 10 (6) of the Court of Claims Act (the "Act"), six factors must be considered: whether (i) defendant had notice of the essential facts constituting the claim; (ii) defendant had an opportunity to investigate the circumstances underlying the claim; (iii) defendant was substantially prejudiced; (iv) claimant has any other available remedy; (v) the delay was excusable; and (vi) the claim appears to be meritorious.
The first three factors, notice, opportunity to investigate and prejudice, are closely related and can be considered together. Defendant concedes that these factors are satisfied for a claim given the amount of documentary material. The State further agrees that claimant has no other available remedy for his claim.
Brewer v State of New York, 176 Misc 2d 337 (Ct Cl 1998).
Cross fails to satisfy the next factor covering whether the delay in filing was excusable. Claimant supplies no precedent for his excuse that he was a layman, unfamiliar with the law (compare to Goldstein v State of New York, 75 AD2d 613, 614 [2d Dept 1980]).
With regard to merit, the First Department has stated that "To be meritorious, a claim must not be patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists (citation omitted)" (Sands v State of New York, 49 AD3d 444 [2008]).
The six statutory factors are to be evaluated in their totality - - the presence or absence of any particular one is not dispositive. With that said "[h]owever, it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the [late claim] request [citations omitted]" (Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
See Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
Cross' late claim application turns on the issue of what the Prusack court termed "legal deficiency." The State argues that the actions of conducting an inmate disciplinary hearing have absolute immunity because of their quasi-judicial nature.
The reversal of a disciplinary hearing and punishment against an inmate and expungement from his record, does not, by itself, mean that the inmate can sue the State for money damages for the period of confinement. (Arteaga v State of New York, 72 NY2d 212 [1988] ). The Arteaga case combined the lawsuits of two inmates, both of whom were disciplined by being placed in the special housing unit and then had their disciplines reversed. The Court of Appeals ruled that the courts below properly dismissed their claims for money damages that had been brought in the Court of Claims.
In Loret v State of New York, 106 AD3d 1159 (3d Dept 2013), lv denied 22 NY3d 852 (2013), the Third Department affirmed the Court of Claims' dismissal of an inmate's claim arising from his 30-day period of punitive confinement after he was found guilty of violating a facility rule. The disposition had been overturned by the Third Department in an Article 78 proceeding on the ground that "it was not supported by substantial evidence." Claimant then sued for damages in the Court of Claims, where his claim was dismissed on the ground that defendant was entitled to absolute immunity. Claimant appealed the dismissal to the Third Department where he alleged that correctional facility employees had violated their own rules and regulations in connection with the disciplinary proceeding. The Third Department held that:
"Here, claimant has not articulated any facts to support his claim that the correctional facility employees responsible for his discipline acted in excess of their authority or in violation of any relevant rules or regulations. Indeed, this Court's annulment of the determination of claimant's guilt was based upon a finding that it was not supported by substantial evidence, not upon any finding that the correctional facility employees acted in excess of their authority or departed from any applicable statutory or regulatory direction . . . Accordingly, the Court of Claims properly determined that defendant was entitled to absolute immunity and dismissed the claim . . ."
[106 AD2d at 1159-1160 (citations omitted); see also Shannon v State of New York, 111 AD3d 1077 (3d Dept 2013); Varela v State of New York, 283 AD2d 841 (3d Dept 2001)].
In Mr. Cross' case, his right to due process was not violated: the hearing was conducted in accordance with the rules set forth in 7 NYCRR, subchapter A (parts 250 through 254). The Appellate Division in claimant's Article 78 petition did refer to 7 NYCRR 1010, but only in the evidentiary context; as quoted above, the Third Department concluded that "substantial evidence does not support the findings of guilt" (Cross v Annuci, 131 AD3d at 759). The Court is therefore constrained to find that Mr. Cross' application under section 10 (6) of the Act is legally deficient and cannot go forward. * * *
In view of the foregoing, and having considered the parties' submissions, IT IS ORDERED that motion No. M-87309 is denied.
The following were reviewed: from claimant - - a Notice of motion for permission to file a late claim pursuant to section 10(6) of the Court of Claims Act and an Affidavit in support of motion to file a late claim pursuant to section 10(6) of the court of claims act; from defendant - - an Affirmation in Opposition to Motion for Permission to File a Late Claim (with exhibits A through D). --------
January 5, 2016
New York, New York
Alan C. Marin
Judge of the Court of Claims