Claimant's second motion for summary judgment in wrongful confinement action is denied where claimant fails to base successive summary judgment motion on newly discovered evidence or other sufficient cause and again fails to show, as a matter of law, that defendant's quasi-judicial hearing immunity is abrogated by defendant's alleged violation of disciplinary hearing regulation.
|Claimant(s):||DAVID A. BROWN, 09-B-2234|
|Claimant short name:||BROWN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||BROWN HUTCHINSON LLP
By: R. Andrew Feinberg, Esq.
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Joan Matalavage, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 21, 2017|
|See also (multicaptioned case)|
Claimant moves pursuant to CPLR 3212, for the second time, for summary judgment "in its entirety." Defendant opposes the motion.
The claim alleges that claimant was wrongfully confined for 272 days as a consequence of a guilty determination issued after a prison disciplinary hearing. The disciplinary determination found claimant guilty of violating Department of Correction and Community Services disciplinary rules related to claimant having allegedly engaged in a sexual act with a fellow inmate. Claimant was sentenced to twelve months in the Special Housing Unit, among other penalties.
The disciplinary determination was later annulled and expunged, on defendant's consent, after claimant commenced a CPLR Article 78 proceeding against defendant.
Claimant's prior motion for summary judgment on the claim was denied in Brown v The State of New York, UID 2013-015-460 [Ct Cl, Collins, J., filed January 15, 2014], which found that:
"In support of his motion for summary judgment, claimant was required to establish both a violation of a due process safeguard embodied in one of the ministerial rules or regulations governing the conduct of disciplinary hearings and the violation was a proximate cause of his damages (see Collins v State of New York, 69 AD3d 46 [4th Dept 2009]; Mickens v State of New York, 25 Misc 3d 191 [Ct Cl 2009]). In support of his motion, however, claimant established no more than the fact that the Hearing Officer's determination of guilt was annulled. As a result, he failed to establish his prima facie entitlement to summary judgment as a matter of law."
"Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause" (Tingling v C.I.N.H.R., Inc.,
120 AD3d 570, 570 [2d Dept 2014]). In MLCFC 2007-9 ACR Master SPE, LLC v Camp Waubeeka, LLC (123 AD3d 1269, 1271 [3d Dept 2014]), the court cites Vinar v Litman (110 AD3d 867, 868-869 [2d Dept 2013]) for the proposition that "evidence is not 'newly discovered' simply because it was not submitted on the previous motion. Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means."
Claimant has failed to identify or offer any "newly discovered evidence or other sufficient cause" ((Tingling, 120 AD3d at 570) to warrant consideration of a second summary judgment motion. Further, in Consolidated Mortg., LLC v Westport Golf Investors, LLC (141 AD3d 923, 925 [3d Dept 2016], lv dismissed 28 NY3d 1102 ), the court instructs that "[a]bsent sufficient cause for advancing the successive motions for summary judgment, [claimant's] application could have been denied on this basis alone."
Here, claimant makes essentially the same argument found wanting in the prior summary judgment motion: That because the disciplinary determination was annulled, claimant is entitled to money damages in an ensuing civil wrongful confinement action.
Contrary to claimant's assertion, the law requires that claimant prove each of the following elements "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929 ; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
The element most often contested in a prison disciplinary wrongful confinement claim is whether claimant can show that the confinement was not "otherwise privileged."
In the context of confinement pursuant to a prison disciplinary proceeding, such confinement is "privileged to the extent that it was under color of law or regulation, specifically in accordance with [inmate misbehavior] regulations" (Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]).
Defendant reminds that where employees of the Department of Correction and Community Supervision, in commencing and conducting formal inmate disciplinary proceedings, "act under the authority of and in full compliance with the governing statutes and regulations . . . their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga v State of New York, 72 NY2d 212, 214 ; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]). This immunity attaches even if the conviction is later reversed administratively or as the result of a successful CPLR Article 78 proceeding (see Arteaga, 72 NY2d at 215).
If, however, prison officials fail to comply with a rule or regulation governing such disciplinary hearings, absolute immunity may be lost and liability for money damages may be imposed if it is proven that the regulatory violation caused actual prejudice or injury to the inmate (see Davidson v State of New York, 66 AD3d 1089, 1089 [3d Dept 2009]; Vasquez v State of New York, 10 AD3d 825 [3d Dept 2004]).
Claimant has again failed to prove that the asserted regulatory violation by defendant of 7 NYCRR 254.5 (failing to produce as a witness at the disciplinary hearing the inmate who allegedly engaged in sexual activity with claimant) caused actual prejudice or injury to claimant. Claimant's summary judgment motion papers do not establish prima facie proof that had the fellow inmate testified at the disciplinary hearing, claimant would have not been found guilty of the disciplinary charge.
In sum, applicable case law requires that the claimant in a wrongful confinement claim pierce the privilege/immunity protections afforded to defendant.
Claimant thus failed to meet his initial summary judgment burden to prove that the privilege/immunity protections provided defendant by Gittens (132 Misc 2d at 402) and Arteaga (72 NY2d at 214), in conducting claimant's quasi-judicial disciplinary hearing, was abrogated.
Finally, even if claimant had met his initial summary judgment burden of proof, defendant has raised an issue of fact requiring a trial by submitting the affidavit of the disciplinary hearing officer and the sworn hearing testimony of the correction officer who witnessed the sexual contact between claimant and the fellow inmate which led to the disciplinary violation alleged against claimant.
For the several reasons set forth above, claimant's second motion for summary judgment is denied.
September 21, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion for Summary Judgment, filed May 23, 2017;
2. Affirmation of R. Andrew Feinberg, dated May 22, 2017, and annexed exhibits;
3. Affidavit of David Brown, sworn to May 17, 2017, and annexed exhibits;
4. Affidavit in Opposition of Joan Matalavage, sworn to July 5, 2017, and annexed exhibits;
5. Affidavit of Eric Gutwein, sworn to August 2, 2013, and annexed exhibits.