New York State Court of Claims

New York State Court of Claims
AYUSO v. STATE OF NEW YORK, # 2018-032-009, Claim No. 123078


Following a trial, defendant moved to dismiss claimant's wrongful confinement claim on the ground that claimant's pre-hearing SHU confinement was privileged. Finding that claimant's pre-hearing SHU confinement was privileged pursuant to 7 NYCRR 251-5.1 (a), the Court grants defendant's motion and dismisses the claim.

Case information

UID: 2018-032-009
Claimant(s): MARCUS AYUSO
Claimant short name: AYUSO
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 123078
Motion number(s):
Cross-motion number(s):
Claimant's attorney: Marcus Ayuso, pro se
Defendant's attorney: Hon. Eric T. Schneiderman, NYS Attorney General
By: Ray A. Kyles, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 25, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant was confined in the Special Housing Unit (SHU) from May 12, 2013 until May 22, 2013, pending a hearing on violations charged in a Misbehavior Report (Claim 4, 6). On May 22, 2013, the Tier III Hearing Officer found claimant not guilty of the violations and ordered claimant released from the SHU (Ex. 2). Claimant commenced this action alleging wrongful confinement and unlawful imprisonment for the ten-day time period that he spent in the SHU pending his hearing. A trial regarding this matter was conducted on April 18, 2018. Following claimant's presentation of his claim, defendant moved to dismiss the claim on the ground that claimant's pre-hearing SHU confinement was privileged. The Court reserved its decision on defendant's motion.

"To establish a claim of false imprisonment or unlawful confinement, claimant [is] required to show that (1) defendant intended to confine him, (2) he was conscious of the confinement, (3) he did not consent to the confinement, and (4) such confinement was not otherwise privileged" (Cass v State of New York, 134 AD3d 1207, 1208 [3d Dept. 2015], lv dismissed 27 NY3d 972 [2016] [internal quotation marks and citations omitted]; accord Miller v State of New York, 124 AD3d 997, 998 [3d Dept. 2015]).

Here, the Court finds that claimant established through his testimony at trial that he was intentionally confined, that he was conscious of said confinement, and that he did not consent to it. However, the fourth element of a wrongful confinement claim is always the most difficult to prove. As relevant here, "[d]efendant's confinement of claimant . . . is privileged if it was in accordance with the regulations of the Department of Corrections and Community Supervision" (Hernandez v State of New York, 48 Misc 3d 218, 220 [Ct Cl 2015]; see Lee v State of New York, 124 AD2d 305, 307 [3d Dept. 1986]; see also Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]). Accordingly, so long as defendant's confinement of a claimant is "under the authority of and in full compliance with the governing statutes and regulations, [its] 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 [1988] [citations omitted]; see generally Tarter v State of New York, 68 NY2d 511, 530-531 [1986]). Such immunity does not attach, however, where there has been a violation of an inmate's right to due process (see Arteaga v State of New York, 72 NY2d at 221). Thus, the "actions of correction personnel . . . in confining [inmates] without granting a hearing or other required due process safeguard . . . would not receive immunity" (id.).

The initial seven days of an inmate's confinement to the SHU following the issuance of a misbehavior report are privileged pursuant to 7 NYCRR 251-5.1 (a). The inmate's superintendent's hearing must be commenced within seven days of the inmate's initial confinement (7 NYCRR 251-5.1 [a]). Here, claimant was confined to the SHU on May 12, 2013, and his superintendent's hearing commenced seven days later on May 19, 2013 (Claimant's Ex. 2). Thus, claimant did not prove by a preponderance of the credible evidence that any correctional employee violated any rule or regulation or exceeded the scope of their authority (see Matter of Kairis v State of New York, 113 AD3d 942 [3d Dept. 2014]; Varela v State of New York, 283 AD2d 841 [3d Dept. 2001]).

For the reasons stated above, defendant's motion to dismiss is granted and the claim is dismissed. All motions or other applications not previously determined are hereby denied as moot.

Let judgment be entered accordingly.

April 25, 2018

Albany, New York


Judge of the Court of Claims