Defendant's motion to dismiss pro se inmate claim for failure to state a cause of action. Claimant brought a cross motion for summary judgment which was denied as it was brought prior to issue being joined.
|Claimant short name:||HARRIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Lydell Harris, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, Attorney General
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 22, 2017|
|See also (multicaptioned case)|
The following papers were read and considered on this motion: Defendant's Notice of Motion, Affirmation in Support with annexed Exhibit A, Claimant's Notice of Cross-Motion for Summary Judgment; Claimant's Affidavit in Support with annexed exhibits, Claimant's Memorandum of Law in Support; Defendant's Affirmation in Opposition and Claimant's Reply Affirmation.
Defendant, the State of New York, has brought this pre-answer motion pursuant to CPLR 3211 and the Court of Claims Act seeking an order dismissing the claim for failure to state a cause of action and for failing to abide by the requirements of the Court of Claims Act. Claimant, Lydell Harris, a pro se inmate, opposed this motion and in lieu of answering the motion has brought a cross motion pursuant to CPLR 3212 seeking an order granting him summary judgement.
"A motion for summary judgment may not be made before issue is joined (CPLR 3212 [a]) and the requirement is strictly adhered to" (City of Rochester v Chiarella, 65 NY2d 92,101 ; JBBNY, LLC v Begum, 2017 NY Slip Op. 08816 [2d Dept 2017]; Gaskin v Harris, 98 AD3d 941 [2d Dept 2012]). In the present case, because defendant has not yet served an answer, the claimant is prohibited from seeking summary judgment at this time. Thus, claimant's cross motion for summary judgment must be denied. However, the Court will consider claimant's papers as his opposition to defendant's motion to dismiss.
Defendant contends that the claim fails to state a cause of action against the defendant because the claim does not support any allegations of wrongful or illegal confinement. Particularly that the claim does not articulate how the confinement was not otherwise privileged so as to overcome defendant's immunity. Although defendant broadly raises the argument that there are violations of the Court of Claims Act, defendant does not set forth the specific violations of the Act.
Claimant alleged in his claim that he was wrongfully issued a Tier III misbehavior report for drug possession when in fact he was actually suffering from disorientation due to his diabetic condition. He contended that the drugs that were found belonged to another inmate. He also stated that during the superintendent's disciplinary hearing he raised numerous procedural objections. Nevertheless, he was found guilty of drug possession and sentenced to 90 days in the highly restrictive S-Block of which he spent 72 days in S-Block. The Superintendent's Hearing was reversed on April 27, 2017 and no reason for the reversal was provided. Claimant alleged that another inmate pled guilty to the charge of drug possession even before claimant's hearing had commenced. The claim sets forth that claimant's wrongful confinement was the result of "numerous procedural due process and other Constitutional violations - including that he was completely innocent..." Lastly, claimant alleges that his confinement was excessive, illegal and not otherwise privileged and is seeking $7,500 in damages.
On a motion to dismiss pursuant to CPLR 3211, the court is required to "accept the facts alleged in the [claim] as true, accord [claimant] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 ). However, a court may freely consider affidavits submitted by the claimant to remedy any defects in the claim and the review entails " whether the proponent of the pleading has a cause of action, not whether he has stated one" (id at 88).
A cause of action for wrongful confinement requires a claimant to show that defendant intended to confine him, that claimant was conscious of the confinement, that claimant did not consent to the confinement and lastly that the confinement was not otherwise privileged (Broughton v State of New York, 37 NY2d 451, 456 ).
The Court of Appeals has held that the actions of Correction Officers in commencing and conducting disciplinary proceedings, that are "under the authority of and in full compliance with the governing statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR parts 250-254) ... 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 ). The Court explains that this immunity can be lost "for [the] unlawful actions of employees taken beyond their authority or in violation of the governing rules and regulations" (Arteaga, supra at 220).
Claimant argues, inter alia, that his rights under 7 NYCRR 251-4.5 (a) were violated when he was unable to call Dr. Hassan as a witness at his hearing. Although did not have first hand knowledge of the incident he allegedly would have been able to testify as to claimant's medical condition of diabetes and its side effects. The inability to call a witness at a hearing may form the basis of an unlawful confinement claim if a claimant can present sufficient evidence that the testimony of the missing witness would have changed the outcome of the hearing (Bottom v State of New York, 142 AD3d 1314 [4th Dept 2016]; Watson v State of New York, 125 AD3d 1064 [3d Dept 2015]).
Claimant's Notice of Motion for Summary Judgment, which he submitted "in lieu of answer to defendant's CPLR 3211" motion, established that claimant has a cause of action for wrongful confinement. Thus, defendant's pre answer motion to dismiss must be denied.
Therefore, for the foregoing reasons, defendant's motion to dismiss is denied and claimant's cross motion for summary judgment is denied. Defendant is directed to serve and file an Answer to the Claim in this matter within 40 days from the date this Decision and Order is filed.
December 22, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims