New York State Court of Claims

New York State Court of Claims
TENACE v. THE STATE OF NEW YORK, # 2018-038-580, Claim No. 129690-A, Motion No. M-92498


Motion to dismiss claim on grounds of absolute immunity granted in part and denied in part. Causes of action complaining of lack of good faith during disciplinary process did not allege due process violation, and thus where dismissed. Causes of action arising from conduct of defendant's agents during investigation and not during disciplinary process not subject to absolute immunity.

Case information

UID: 2018-038-580
Claimant short name: TENACE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129690-A
Motion number(s): M-92498
Cross-motion number(s):
Claimant's attorney: No Appearance
Defendant's attorney: BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Thomas R. Monjeau, Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 29, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an individual formerly incarcerated at a State correctional facility within the New York State Department of Correction and Community Supervision (DOCCS), filed this claim seeking monetary compensation for 24 days of unlawful confinement pending resolution of a misbehavior report. Defendant has filed a verified answer to the claim, and now moves to dismiss the claim for lack of subject matter jurisdiction and failure to state a cause of action. Claimant has not opposed the motion.(1) For the reasons that follow, defendant's motion will be granted in part.

That part of defendant's notice of motion seeking dismissal for lack of subject matter jurisdiction pursuant to CPLR 3211 (a) (2) is unsupported by any explication or argument by defendant and thus, such relief will not be granted. The Court will proceed to consider defendant's expressed argument that the claim fails to state a cause of action.

On a motion to dismiss a claim for failure to state a cause of action:

"claimant's claim is liberally construed and all facts asserted therein . . . are accepted as true (see CPLR 3026; 511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; see also Nonnon v City of New York, 9 NY3d 825, 827 [2007]; State of New York v Shaw Contract Flooring Servs., Inc., 49 AD3d 1078, 1079 [2008]). Where, as here, the motion is premised upon claimant's failure to state a claim (see CPLR 3211[a][7] ) . . . the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., "whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; accord Nonnon v City of New York, 9 NY3d at 827)."

(IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [3d Dept 2008], lv denied 11 NY3d 706 [2008]).

The claim alleges that on March 27, 2017, following a three-hour period in which claimant failed to produce a urine sample, claimant was issued an inmate misbehavior report (IMR) charging him with refusing a direct order and failure to comply with urinalysis testing procedures (see Claim No. 129690-A,  B, D[16]). The claim alleges that his failure to submit a urine sample was not willful, but was caused by certain physical factors that rendered him unable to do so, and that the correction officers who were attending claimant during the urine test failed to provide certain accommodations that claimant requested of them. The claim alleges that claimant was placed in "full confinement" in his cell for "23 hours per day with his door closed, except for meals" from March 27, 2017 until the disciplinary charges were resolved in his favor on April 19, 2017 (see id.,  D[19-21]). The claim further alleges that claimant remained in "full confinement" beyond the 14 days permitted for completion of the disciplinary proceeding (see id.,  D[30]). The claim asserts five causes of action: (1) unlawful confinement pending a hearing without a reasonable belief that claimant posed a threat to safety or institutional security; (2) abuse of process, by issuing a misbehavior report without a good faith belief that claimant had willfully or intentionally violated prison rules; (3) negligent breach of a ministerial duty to comply with 7 NYCRR 1020.4(e) with regard to claimant's request for special accommodation; (4) State constitutional tort sounding in cruel and unusual punishment for conduct occurring before the issuance of the IMR; and (5) negligent training and supervision of employees regarding policies and procedures for special accommodation requests.

Defendant's motion to dismiss for failure to state a cause of action relies exclusively on the doctrine of absolute immunity, as stated by the Court of Appeals, that when:

"employees [of DOCCS] act under the authority of and in full compliance with the governing statutes and regulations (Correction Law 112, 137; 7 NYCRR parts 250-254), their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity (see Tarter v State of New York, 68 NY2d 511; Tango v Tulevech, 61 NY2d 34)."

(Arteaga v State, 72 NY2d 212, 214 [1988]). Thus, when DOCCS employees "have conducted the disciplinary process in accordance with the governing statutes and regulations, their actions are discretionary conduct that is quasi-judicial in nature and absolutely immune from liability" (id.), and an allegation that defendant's agents acted in bad faith does not defeat absolute immunity absent an allegation of a violation of a due process safeguard (see Johnson v State of New York, UID No. 2018-015-112 [Ct Cl, Collins, J., Mar. 7, 2018]).

The first two causes of action arise from conduct relating to the disciplinary process and the facts stated in the claim address defendant's compliance with regulatory requirements that pre-hearing confinement be based upon a reasonable concern for safety and security (see 7 NYCRR 251-1.6) and issuance of a misbehavior report without a good faith belief that claimant willfully violated prison rules (7 NYCRR 251-3.1). Thus, defendant is absolutely immune from liability if its employees made discretionary decisions while acting in full accordance with these regulations. The causes of action allege only that defendant lacked a reasonable basis to confine him and did not act in good faith in charging him with a rules violation. To the extent that these allegations raise the specter of bad faith, the claim does not allege a violation of a due process safeguard, and thus, defendant's motion to dismiss the claim for failure to state a cause of action will be granted with respect to these two causes of action (see Bethune v State of New York, UID No. 2015-015-098 [Ct Cl, Collins, J., Dec. 7, 2015]; Pryor v State of New York, UID No. 2010-041-057 [Ct Cl, Milano, J., Dec. 9, 2010]).

The remaining causes of action relate to the conduct of defendant's employees prior to the commencement of disciplinary proceedings, while they were attempting to obtain a urine sample from claimant, and to defendant's alleged negligent training and supervision of its employees. The conduct complained of occurred during an investigation, and not as part of the quasi-judicial disciplinary process and thus, the doctrine of absolute immunity is inapplicable to these causes of action. Accordingly, defendant's motion to dismiss the claim exclusively on the grounds of absolute immunity will not be granted with respect to these causes of action, and it is therefore

ORDERED, that defendant's motion to dismiss the claim is GRANTED IN PART, and the first two causes of action alleging wrongful confinement and issuing a misbehavior report without good faith are DISMISSED, and it is further

ORDERED, that defendant's motion is in all other respects DENIED.

August 29, 2018

Saratoga Springs, New York


Judge of the Court of Claims

Papers considered:

(1) Claim No. 129690-A, filed May 8, 2017;

(2) Verified Answer, filed June 9, 2017;

(3) Notice of Motion, dated June 27, 2018;

(4) Affirmation of Thomas R. Monjeau, AAG, dated June 27, 2018, with Exhibits A-D);

(5) Correspondence of Eileen F. Fazzone, Esq., Chief Clerk of the Court of Claims, dated

July 6, 2018.

1. Defendant served its motion upon claimant at an address different than that which appears in the Court's records. The Chief Clerk of the Court sent copies of the letter notifying the parties of the calendar date of the motion to claimant's address of record as well as to the address to which defendant sent the motion.