New York State Court of Claims

New York State Court of Claims
BRENSON v. THE STATE OF NEW YORK, # 2018-032-014, Claim No. 127361, Motion No. M-91014, Cross-Motion No. CM-91202

Synopsis

Claimant's motion for summary judgment and to strike defendant's answer is denied and defendant's cross motion for summary judgment is granted.

Case information

UID: 2018-032-014
Claimant(s): AKEEM BRENSON
Claimant short name: BRENSON
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127361
Motion number(s): M-91014
Cross-motion number(s): CM-91202
Judge: JUDITH A. HARD
Claimant's attorney: Akeem Brenson, Pro Se
Defendant's attorney: Hon. Eric T. Schneiderman, NYS Attorney General
By: Ray A. Kyles, Assistant Attorney General,
Of Counsel
Third-party defendant's attorney:
Signature date: January 30, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, appearing pro se, filed the instant claim in this matter on January 13, 2016 seeking damages arising from defendant's alleged wrongful confinement of claimant at Five Points Correctional Facility (FPCF) following a disciplinary hearing. The claim also alleges that defendant was negligent in failing to provide medical care to claimant. Claimant now moves for summary judgment as to his wrongful confinement claim, and also moves to strike defendant's answer. Defendant cross-moves to dismiss the claim in its entirety for failure to state a cause of action and for failure to timely serve the claim. For the reasons that follow, the Court denies claimant's motion for summary judgment and to strike defendant's answer, grants defendant's cross motion, and dismisses the claim.

FACTS

On December 5, 2014, claimant was charged with violating the following Rules of Inmate Behavior: 107.10 (Interference with Employee); 106.10 (Refusing Direct Order); 102.10 (Threats); 109.15 (Refusing Double Celling); and 104.13 (Creating Disturbance). The violations stemmed from an incident that occurred in FPCF's kitchen area on December 5, 2014. A Tier III disciplinary hearing was held on December 10, 2014 and claimant was found guilty on all of the violations as charged. As a penalty, claimant received 90 days of Special Housing Unit (SHU) confinement, which was deferred and suspended for 180 days. In the alternative, claimant received 90 days of keeplock confinement, and 90 days loss of packages, commissary, and phone privileges. Forty-five days of the 90-day penalty were suspended and deferred. Thus, as a result of the December 10, 2014 Tier III hearing, claimant ultimately received 45 days of keeplock confinement and 45 days loss of packages, commissary, and phone privileges.

On December 15, 2014, claimant appealed the disposition of the Tier III hearing to the Commissioner of the Department of Corrections and Community Supervision (DOCCS). On January 30, 2015, the Acting Director of Special Housing, Donald Venettozzi, reversed the disciplinary determination of guilty received by claimant as a result of the December 10, 2014 Tier III hearing. In reversing the determination of guilt, Venettozzi found that the "record fails to indicate how the [claimant]'s mental health affected the hearing disposition" (Kyles Aff., Exhibit E).

LAW AND ANALYSIS

CLAIMANT'S MOTION TO STRIKE DEFENDANT'S ANSWER

Claimant seeks to strike the affirmative defenses asserted in defendant's answer.(1) Defendant did not address this portion of claimant's motion in its cross motion.

Pursuant to CPLR 3211 (b), a motion to dismiss a defense must be made on the ground that either the defense is not stated or has no merit. The moving party bears the burden of coming forward with sufficient proof to demonstrate that the defense cannot be maintained (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept. 2006]; see Arquette v State of New York, 190 Misc 2d 676 [Ct Cl 2001]). It is error for a court to strike a defense if a material issue of fact remains unresolved (Matter of Harrison v State of New York, 262 AD2d 833, 833-834 [3d Dept. 1999]) or if there is any doubt as to the availability of the defense (Fireman's Fund Ins. Co. v Farrell, 57 AD3d 721, 723 [2d Dept. 2008]; Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept. 2001]).

The Court has reviewed the 12 affirmative defenses raised by defendant. Claimant only specifically addresses the first three affirmative defenses listed in defendant's answer. As to the remaining nine affirmative defenses, claimant merely states in a general and conclusory fashion that defendant's answer should be dismissed. Because claimant has not met his burden of proof in showing that defendant's fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth affirmative defenses cannot be maintained, the Court denies claimant's request to strike those affirmative defenses (Cargill v State of New York, UID No. 2017-040-088 [Ct Cl, McCarthy, J., July 14, 2017]).

As for the remaining affirmative defenses, the first affirmative defense asserts that the Court lacks subject matter jurisdiction over the claim because the notice of intention to file a claim does not contain the necessary elements prescribed in Court of Claims Act 11 (b). As defendant does not address the adequacy of the claims alleged in the notice of intention to file a claim pursuant to Court of Claims Act 11 (b), the Court denies claimant's motion to strike this defense as moot.

The second affirmative defense asserts that the Court lacks subject matter and personal jurisdiction over the claim because the claim was not filed or served timely, as required by Court of Claims Act 10. As defendant does not raise a timeliness issue as to claimant's wrongful confinement claim, the Court need not assess whether this claim was timely filed. However, defendant asserts that claimant's cause of action sounding in medical negligence was not timely filed. For the reasons set forth infra, the Court finds that this defense does not lack merit as a matter of law.

The third affirmative defense asserts that the claim fails to state a cause of action. This defense has been held to be "harmless surplusage," and a motion to strike it "should be denied as unnecessary" (Pump v Anchor Motor Frgt., Inc., 138 AD2d 849, 850 [3d Dept. 1988]; see also Towne v Kingsley, 121 AD3d 1381, 1383 [3d Dept. 2014]).

Accordingly, claimant's motion to strike defendant's answer is denied.

CLAIMANT'S AND DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT

"Summary judgment is a drastic remedy that 'should not be granted where there is any doubt as to the existence of [triable] issues [of fact], or where the issue is arguable'" (Hall v Queensbury Union Free Sch. Dist., 147 AD3d 1249, 1250 [3d Dept. 2017], quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Stukas v Streiter, 83 AD3d 18, 23 [2d Dept. 2011]). The proponent of the motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [internal citations omitted]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Robinson v Kingston Hosp., 55 AD3d 1121, 1123 [3d Dept. 2008]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Town of Kirkwood v Ritter, 80 AD3d 944, 945-946 [3d Dept. 2011]). In considering the motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept. 2011]; see Winne v Town of Duanesburg, 86 AD3d 779, 780-781 [3d Dept. 2011]).

Wrongful Confinement Claim

To establish a claim for wrongful 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. 2016], 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]). As the first three elements of this cause of action are not disputed, defendant's liability in this case turns upon whether or not its confinement of claimant was privileged.

Formal inmate disciplinary proceedings conducted by prison officials "in full compliance with the governing statutes and regulations . . . 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]; Varela v State of New York, 283 AD2d 841 [3d Dept. 2001]). Thus, it is well-established that the State cannot be held liable where there is no allegation that the prison official acted in contravention of established rules and regulations while conducting disciplinary proceedings (Holloway v State of New York, 285 AD2d 765, 766 [3d Dept. 2001]). This is true even where the disposition of a disciplinary hearing is later reversed following an administrative appeal (Rivera v State of New York, UID No. 2006-028-008 [Ct Cl, Sise, J., Feb. 8, 2006]). However, "not all disciplinary hearing procedural rules and regulations, if violated, form a basis to abrogate the immunity afforded to employees of the [DOCCS] in commencing and conducting formal inmate disciplinary proceedings. The rule or regulation must implicate minimal due process protections" (Amato v State of New York, UID No. 2014-041-038 [Ct Cl, Milano, J., June 26, 2014]). A claimant must also show that the prison official's rule violation "caused actual prejudice or injury to [the] claimant at the disciplinary hearing" (id.).

Here, claimant avers that the Hearing Officer failed to record his interview with mental health staff during the disciplinary hearing, failed to indicate how claimant's mental health affected the disposition of the Tier III hearing, and failed to allow claimant to call witnesses and present evidence. Defendant counters that the Hearing Officer's errors would not have affected the outcome of the disciplinary hearing, and therefore summary judgment should be entered in favor of defendant.

Failure to Record Interview with Mental Health Staff

Claimant argues that the Hearing Officer failed to record his interview with mental health staff regarding claimant's mental health status (Claim, 8).

During a Tier III disciplinary hearing, "[a]ny witness shall be allowed to testify at the hearing in the presence of the inmate unless the hearing officer determines that so doing will jeopardize institutional safety or correctional goals" (7 NYCRR 254.5 [b]). Should the Hearing Officer determine that a witness's testimony will jeopardize institutional safety or correctional goals and the witness testifies outside the presence of the inmate, the witness's testimony must be recorded and made available to the inmate unless doing so would jeopardize institutional safety or correctional goals (id.). Here, the Hearing Officer took the testimony of an Office of Mental Health (OMH) representative, but there is no indication that it was recorded (see Kyles Aff., Exhibit H, pp. 17-18). Although the Hearing Officer's actions were in violation of established rules and regulations, "the fact that the Hearing Officer heard testimony outside the presence of the claimant implicates the right to confront and cross-examine witnesses which is specifically excluded from the minimal due process protections accorded inmates" (Bethune v State of New York, 50 Misc 3d 1216[A], 2015 NY Slip Op 51964[U], *4 [Ct Cl 2015], citing Wolff v McDonnell, 418 US 539, 567-568 [1974] [additional citations omitted]). While a hearing officer's failure to record testimony taken outside the presence of an inmate may form the basis for a proceeding to annul the hearing officer's determination, that failure cannot form the basis for a claim of wrongful confinement (id.; Wilson v State of New York, UID No. 2014-015-581 [Ct Cl, Collins, J., May 12, 2014]).

Failure to State How Claimant's Mental Condition was Considered

Claimant further argues that the Hearing Officer failed to state how claimant's mental condition affected the disposition of the disciplinary hearing, which violated 7 NYCRR 254.6 (f). Defendant does not dispute that the Hearing Officer failed to state on the record how claimant's mental condition affected the outcome of the disciplinary hearing but argues that the Hearing Officer's failure does not change the actual outcome of the hearing. The Court agrees.

Not all violations of disciplinary hearing procedural rules will abrogate the immunity afforded to the State when its employees conduct such disciplinary hearings (Amato v State of New York, UID No. 2014-041-038 [Ct Cl, Milano, J., June 26, 2014]). Importantly, a claimant must show that the Hearing Officer's violation of a disciplinary hearing procedural rule caused actual prejudice or injury to the claimant at the disciplinary hearing (id.). In that regard, claimant has failed to show that the Hearing Officer's failure to articulate how claimant's mental condition affected the outcome of the disciplinary hearing. Moreover, claimant does not argue that the Hearing Officer failed to consider his mental health condition; he only argues that the Hearing Officer failed to articulate how claimant's mental condition affected his decision. Thus, the Court finds that, because the record reflected that the Hearing Officer considered confidential testimony from an OMH representative regarding claimant's mental health (Kyles Aff., Exhibit H, pp. 17-18), the failure to articulate how the testimony affected the disposition of the disciplinary hearing did not cause actual prejudice or injury to claimant (see Pante v Goord, 73 AD3d 1394, 1395-1396 [3d Dept. 2010]).

Failure to Allow Claimant to Call Witnesses and Present Evidence

Claimant also argues that the Hearing Officer did not allow him to call witnesses at the disciplinary hearing and also failed to review video camera footage of the incident. Pursuant to 7 NYCRR 253.6 (c), an inmate may submit oral and documentary evidence at the disciplinary hearing. An inmate is also allowed to call witnesses at the disciplinary hearing (7 NYCRR 253.5 [c]).

The Court has reviewed the entire record of the disciplinary hearing, (see Kyles Aff., Exhibit H) and finds that claimant failed to request the testimony of any witnesses, and also failed to request video footage of the alleged incident, despite being advised of his right to call witnesses and present evidence. At the beginning of the disciplinary hearing, the Hearing Officer advised claimant that he may have witnesses testify on his behalf, and that he should present any oral or documentary evidence that he would like the Hearing Officer to consider in rendering his decision (Kyles Aff., Exhibit H, p. 1). The Hearing Officer further advised claimant that any procedural objections or claims should be made promptly during the hearing (id.). Furthermore, claimant received tier assistance before the disciplinary hearing from a teacher at FPCF.(2) He did not request that the teacher interview witnesses or obtain video footage of the incident in question (id., p. 3). Because claimant did not request that the Hearing Officer interview any witnesses or view video footage, and also failed to lodge any procedural objections during the disciplinary hearing, the Court finds that 7 NYCRR 253.6 (c) and 7 NYCRR 253.5 (c) were not violated by the Hearing Officer (see Sierra v Venettozzi, 153 AD3d 1548, 1549 [3d Dept. 2017] ["Petitioner's claim that he was denied the right to present certain evidence at the hearing is unpreserved, as he failed to raise this issue at the hearing when it could have been addressed, even after the Hearing Officer advised him of his right to present evidence, which he indicated he understood"]; Campbell v State of New York, UID No. 2017-053-573 [Ct Cl, Sampson, J., Nov. 30, 2017]).

Thus, defendant is entitled to summary judgment dismissing claimant's wrongful confinement claim, as claimant has failed to set forth any proof sufficient to establish the existence of a material issue of fact that would require a trial on his wrongful confinement claim (Alvarez v Prospect Hosp., 68 NY2d at 324).

Medical Negligence Claims

Claimant asserts in the instant claim that defendant denied claimant medical attention on December 5, 2014 and December 8, 2014. Defendant argues that the Court lacks subject matter jurisdiction over the medical negligence claims because they are untimely under Court of Claims Act 10 (3).

Pursuant to Court of Claims Act 10 (3), a claim alleging negligence of an officer or employee of the State of New York must be filed and served upon the Attorney General within 90 days after the accrual of the claim, unless the claimant serves a notice of intention to file a claim within 90 days of the accrual date. If the claimant properly serves a notice of intention to file a claim upon the Attorney General within 90 days of the accrual date, the claim shall be filed within two years after the accrual date of the claim (Court of Claims Act 10 [3]).

Here, claimant alleges that defendant was negligent in providing medical care to claimant on December 5, 2014 and December 8, 2014. Thus, claimant was required to assert these causes of action by way of a claim or a notice of intention to file a claim by March 5, 2015, and March 8, 2015, respectively. Claimant served a notice of intention to file a claim on the Attorney General on March 14, 2015 according the Affidavit of Service attached to the notice of intention to file a claim (Kyles Aff., Exhibit A). Not only is the notice of intention to file a claim untimely as to the medical negligence claims; it also fails to allege a claim sounding in medical negligence. Furthermore, to the extent that claimant asserts medical negligence causes of action in the claim, these causes of actions are still untimely, as the claim was served on January 5, 2016, (Kyles Aff., Exhibit B) nearly two years after the deadlines required by Court of Claims Act 10 (3). Thus, the Court finds that it lacks subject matter jurisdiction over the medical negligence causes of action asserted in the claim.

Constitutional Claims

To the extent that movant alleges violations of his rights under the Federal Constitution (Claim, 5), this Court lacks subject matter jurisdiction over such claims, as they must be brought pursuant to 42 USC 1983 and may not be maintained in the Court of Claims, given that the State is not a "person" for purposes of 42 USC 1983 (see Brown v State of New York, 89 NY2d 172, 185 [1996]; Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept. 1989]; Ohnmacht v State of New York, 14 Misc 3d 1231[A], 2007 NY Slip Op 50229[U], *2 [Ct Cl 2007]).CONCLUSION

Based upon the foregoing, it is hereby

ORDERED that claimant's motion (M-91014) for summary judgment and to dismiss defendant's answer is denied in its entirety; and it is further

ORDERED that claimant's cross motion (CM-91202) for summary judgment is granted; and it is further

ORDERED that claim number 127361 is dismissed.

January 30, 2018

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims

Papers Considered:

1. Claim, filed on January 13, 2016.

2. Notice of Motion for Summary Judgment, dated July 27, 2017; and Affidavit in Support of Motion for Summary Judgment, sworn to by claimant on July 27, 2017, with Attachments annexed thereto.

3. Notice of Cross Motion for Summary Judgment Dismissing Claim, dated October 5, 2017; and Affirmation in Support of Defendant's Cross-Motion for Summary Judgment Dismissing the Claim, sworn to by Ray A. Kyles, AAG on October 5, 2017, with Exhibits A through H annexed thereto.

4. Verified Surreply, sworn to by claimant on November 15, 2017.


1. Although claimant's notice of motion seeks to strike defendant's entire answer, the relief requested in his affidavit in support of the motion seeks to dismiss only certain affirmative defenses asserted in the answer.

2. Inmates are entitled to choose a facility employee from an established list to assist them when they are preparing for a Tier III disciplinary hearing (see 7 NYCRR 251-4.1 [a]).