Opinion
# 2019-028-560 Claim No. 127708 Motion No. M-93305
06-25-2019
STEVEN B. THOMAS v. THE STATE OF NEW YORK
STEVEN B. THOMAS, PRO SE HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2019-028-560 |
| Claimant(s): | STEVEN B. THOMAS |
| Claimant short name: | THOMAS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127708 |
| Motion number(s): | M-93305 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | STEVEN B. THOMAS, PRO SE |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 25, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on defendant's motion for summary judgment dismissing the claim:
1-3 Notice of Motion, Affirmation in Support by Matthew H. Feinberg, Assistant Attorney General, Memorandum of Law and attached;
4-6 Notice of Motion in Opposition to Defendants Summary Judgment (sic), Claimant's Affirmation in Opposition to Defendants Summary Judgment (sic) by Steven B. Thomas, Claimant, Memorandum of Law and attached papers;
7-10 Filed papers: Claim, Answer; Thomas v State of New York, Claim No. 127708, Motion No. M-91523, unreported (Ct Cl, Scuccimarra, J., April 16, 2018); Thomas v State of New York, Claim No. 127708, Motion No. M-89835, unreported (Ct Cl, Scuccimarra, J., June 15, 2017) .
Steven B. Thomas, an inmate proceeding pro se, alleges that defendant's agents at Sing Sing correctional facility wrongfully confined him to keeplock for a period of 9 days commencing February 10, 2016, and denied him certain privileges for the same period. The claim was filed on March 25, 2016. An answer was served on May 5, 2016, containing several affirmative defenses.
Defendant now moves for summary judgment on its eleventh and fourteenth affirmative defenses, asserting (1) that the claim does not comply with the jurisdictional pleading requirements of Court of Claims Act §11(b) and does not state a cause of action, in that it does not contain the date the claim "arose", namely, when claimant was released from confinement and (2) the governmental immunity defense applicable to the State's discretionary, quasi-judicial acts is a complete defense, where the claimant was afforded all due process considerations in the disciplinary proceeding, and all charges were dismissed after the hearing. Civil Practice Law and Rules §3212.
In support of defendant's motion for summary judgment, in addition to counsel's affirmation and memorandum of law, defendant has included copies of the pleadings and the disciplinary hearing packet, which includes, among other things, the initial misbehavior report, and the hearing disposition record containing the hearing officer's notes. [Feinberg Affirmation, Exhibits A - C].
Claimant opposes the motion, arguing that it should be "waived as untimely for the fact of claimant has satisfied all requirements by sufficiently stating where act took place, time it arose [accrual] date was released from confinement damages or injuries claimed to have sustained and total sum on page 2 of [claimant's] claim (See exhibit A)." [Thomas Affirmation, ¶5, attachment]. Claimant also argues that summary judgment should be denied because the defendant violated their own rules and regulations thus immunity should not apply. Specifically, he states that there was no explanation on the record or written reason given for denial of claimant's witnesses. [Thomas Affirmation, ¶6].
To establish entitlement to summary judgment the movant must provide an affidavit by someone with knowledge and/or a verified pleading reciting the material facts, and attach what available proof he has to show that the cause of action is established, that there is no defense and that there are no material triable issues of fact preventing summary relief. Civil Practice Law and Rules §3212(b). "...The motion shall be granted if, upon all the papers and proof submitted the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party....the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact...." Civil Practice Law and Rules §3212(b).
If the initial showing on a motion for summary judgment is insufficient, however, then even if papers submitted in opposition are inadequate the motion for summary judgment should be denied.
With regard to compliance with Court of Claims Act §11(b), the claim provides that it accrued on February 18, 2016. There is no requirement that claimant provide a narrative to the effect that this date was the date of his release, which is the date upon which a cause of action for wrongful confinement accrues. See Davis v State of New York, 89 AD3d 1287 (3d Dept 2011); Santiago v City of Rochester, 19 AD3d 1061, 1062 (4th Dept 2005), lv denied 5 NY3d 710 (2005); Ramirez v State of New York, 171 Misc 2d 677(Ct Cl 1997). Although the issue was not "waived" as claimant argues, since the matter was raised in defendant's answer, defendant has nonetheless not established entitlement to judgment as a matter of law on this ground.
With regard to the second basis for seeking summary judgment dismissing the claim, however, the quasi-judicial, discretionary, acts of correction employees taken in furtherance of authorized disciplinary measures are entitled to absolute immunity. Arteaga v State of New York, 72 NY2d 212, 219-220 (1988). These actions include "preparing and filing misbehavior reports, confining inmates, and making dispositions" during and after hearings. Arteaga, 72 NY2d at 219. If officers act inconsistently with their own rules and regulations, or otherwise act outside the sphere of privileged actions, liability may attach. The fact that disciplinary charges are dismissed, or a disposition is overturned on appeal, does not give rise to a cognizable cause of action when there is no evidence defendant acted inconsistently with its own rules and regulations in affording claimant the due process protections required in the disciplinary proceedings. Arteaga v State of New York; Holloway v. State of New York, 285 AD2d 765 (3d Dept 2001); c.f.: Gittens v. State of New York,132 Misc 2d 399,407 (Ct Cl 1986).
The regulations that may be applicable here provide that the hearing for an inmate in pre-hearing disciplinary confinement should commence within seven days of his initial confinement [see 7 NYCRR §251-5.1(a)], and that the hearing should thereafter be completed within 14 days, unless there have been authorized extensions that are part of the record. [See 7 NYCRR §251-5.1(b)]. The date of issuance of the misbehavior report is also not included in calculating either the 7 day period when a hearing should commence, or the 14 day period within which a hearing should be completed. See Matter of Agosto v Selsky, 39 AD3d 1106 (3d Dept 2007); Matter of Freeman v Selsky, 270 AD2d 547, 547 - 548 (3d Dept 2000). It is also noted that the regulation concerning concluding the hearing within 14 days is "directory only" in the absence of "substantive prejudice" to a claimant. Matter of Comfort v Irvin, 197 AD2d 907, 908 (4th Dept 1993), lv denied 82 NY2d 662 (1993); Matter of Hairston v Goord, 299 AD2d 359 (2d Dept 2002).
Claimant alleges for the first time in the papers submitted in opposition to this motion that the hearing officer did not provide a reason on the record for denying witnesses claimant allegedly requested. [Thomas Affirmation, ¶6].
In this case, a misbehavior report was issued by CO Maldonado on February 10, 2016 charging claimant with possession in his cell of contraband, smuggling and stealing in violation of facility rules, calling for a Tier II disciplinary hearing. [Feinberg Affirmation, Exhibit C (Inmate Misbehavior Report)]. The items at issue were "15 [pairs] of hospital socks, 1 white Montefiore Hospital pillow case, 1 white Montefiore Hospital towel, [and] 1 excess pillow and insides of a state mattress." [Id.]. Claimant was given a copy of the misbehavior report on February 11, 2016. [Feinberg Affirmation, Exhibit C (Tier II Serving Record Sheet)].
The hearing disposition sheet provides that the hearing started on February 18, 2016, that it ended on February 20, 2016, that claimant was found not guilty, and that claimant was released from confinement on February 18, 2016. [Feinberg Affirmation, Exhibit C (Disciplinary Hearing Disposition Rendered)]. The hearing was initially scheduled to start on February 17, 2016. However, because the inmate was not available as he was attending a deposition, [Feinberg Affirmation, Exhibit C (Extension Requests)], the extension to February 18, 2016 was authorized. [Id.]. The worksheet for the hearing, signed by the claimant and the hearing officer, shows that claimant requested and withdrew the request for two employee witnesses. [Feinberg Affirmation, Exhibit C (Hearing Record Sheet)].
The misbehavior report was timely served, contained the charges, and the signature of the complaining officer. 7 NYCRR §251-3 et seq. Discretionary rulings were made during the course of the hearing, and an authorized extension was granted and made part of the record. A disposition in claimant's favor was entered thereafter and, moreover, he was released from confinement to his cell before the disposition as reflected in the hearing packet. The claimant is not "damaged" under these facts. See e.g., Bottom v State of New York, 142 AD3d 1314 (4th Dept 2016) app dismissed 28 NY3d 1177 (2017); Moustakos v State of New York, 133 AD3d 1268 (4th Dept 2015).
The disposition entered after a timely concluded hearing is just the type of quasi-judicial determination shielded by the immunity principles of Arteaga v State of New York, supra. There has been no showing that claimant was kept confined beyond the privileged period.
Based on the foregoing, defendant has met its burden of establishing entitlement to a judgment of dismissal as a matter of law, in that no period of confinement lacked privilege, and claimant has not presented any material issues of fact that would warrant a plenary trial.
Accordingly, defendant's motion for summary judgment dismissing the claim is granted, and Claim No. 127708 is in all respects dismissed.
June 25, 2019
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims