Defendant's pre-answer motion to dismiss claim pursuant to CPLR 3211 (a) (7) for failure to state a wrongful confinement cause of action is denied where primary basis of motion is assertion of governmental function immunity defense which claimant is not required to disprove as an element of his cause of action for wrongful confinement.
|Claimant(s):||RYAN HORTON, 16-A-4510|
|Claimant short name:||HORTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||RYAN HORTON
|Defendant's attorney:||HON BARBARA D. UNDERWOOD
New York State Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 4, 2018|
|See also (multicaptioned case)|
Defendant moves, in lieu of answering, to dismiss this "unlawful confinement" claim, pursuant to "CPLR 3211 (a) (7) . . . on the grounds that the instant claim fails to state a cause of action." Claimant opposes the defendant's motion.
In determining a CPLR 3211 (a) (7) motion to dismiss a claim for failing to state a cause of action, the court is required to liberally construe the claim, accept the facts alleged in the claim as true, confer on the claimant the benefit of every possible inference and determine whether the facts as alleged fit within any cognizable legal theory (Meyer v Howard A. Zucker, as Commissioner of Health, et al., 160 AD3d 1243, 1245 [3d Dept 2018]; see Torrance Constr., Inc. v Jacques, 127 AD3d 1261, 1263 [3d Dept 2015]; Goshen v Mutual Life Ins. Co. Of New York, 98 NY2d 314, 326 ; 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 ).
All of the factual allegations contained in affidavits offered in support of the dismissal motion which are inconsistent with the claim and the affidavits offered to sustain a cause of action must be disregarded (Rovello v Orofino Realty Co., 40 NY2d 633, 635 ). Where the pleading itself is defective, but a viable cause of action can be found in the extrinsic papers when read in conjunction with the pleading, the dismissal motion may be granted with leave given to serve an amended pleading (Rovello, 40 NY2d at 635-636; Marino Industries Corp. v Kahn Lumber Co., 61 AD2d 978, 979 [2d Dept 1978]).
To state a cause of action for wrongful confinement, claimant must allege 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 allege and prove that the confinement was not "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]).
The claim alleges that it "arises from the unlawful confinement of the Claimant" resulting from an inmate disciplinary hearing which was allegedly commenced and conducted based upon a "false misbehavior report."
The inmate disciplinary hearing was completed on January 18, 2018 and claimant was sentenced to sixty (60) days keeplock, among other penalties. The disciplinary hearing determination was administratively reversed on March 19, 2018.
The administrative decision reversing the determination did not state the grounds for the reversal, whether based upon a lack of substantial evidence or upon violation of a disciplinary hearing rule or regulation.
The claim was served on the defendant on April 16, 2018.
While claimant has not expressly identified any specific regulation allegedly violated by defendant in commencing and conducting the hearing and imposing the penalty, or in confining him in keeplock following the hearing determination, he has expressly alleged that the misbehavior report was "false" and, assuming the truth of claimant's allegations, has arguably alleged violations of 7 NYCRR 251-3.1 and 251-2.2, regarding preparation and review of misbehavior reports.
Defendant's assertion that the "claim has not provided any evidence that the restrictive confinement following the tier hearing was not otherwise privileged, as there is no evidence of a violation of a non-discretionary due process safeguard" is unavailing. It is not claimant's obligation to provide "evidence" in his pleading. For purposes of CLR 3211 (a) (7), the Court is required, as set forth earlier, to "assume the facts alleged to be true, view them liberally and in the light most favorable to the [claimant]" (Torrance, 127 AD3d at 1263).
Finally, while defendant also argues that it is "immune from liability" pursuant to Arteaga v State of New York, 72 NY2d 212 , the doctrine of governmental function immunity is a defense which must be timely alleged and proved by the defendant, rather than disproved by the claimant as an element of his cause of action:
"The second principle relevant here relates not to an element of plaintiffs' negligence claim but to a defense that was potentially available to the City--the governmental function immunity defense. Although the State long ago waived sovereign immunity on behalf of itself and its municipal subdivisions, the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions" (Valdez v City of New York, 18 NY3d 69, 75-76 ; see Metz v State of New York, 20 NY3d 175, 179 ; DiMeo v Rotterdam Emergency Med. Servs., Inc., 110 AD3d 1423 [3D Dept 2013], lv denied 22 NY3d 864 ).
Each of the cases cited by defendant for the proposition that claimant failed to allege that the confinement was not "otherwise privileged" (Loret v State of New York, 106 AD3d 1159, 1159 [3d Dept 2013], lv denied 22 NY3d 852 ; Pryor v State of New York, 92 AD3d 1047 [3d Dept 2012]; Varela v State of New York, 283 AD2d 841 [3d Dept 2001]; and Holloway v State of New York, 285 AD2d 765 [3d Dept 2001]) involved dismissals resulting from post-answer motions based upon the governmental function immunity defense rather than a pre-answer motion based upon CPLR 3211 (a) (7).
The Court finds that claimant has adequately stated a cause of action for wrongful confinement.
The defendant's motion to dismiss the claim pursuant to CPLR 3211 (a) (7) is denied.
September 4, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion to Dismiss in Lieu of Answer, filed May 24, 2018;
2. Affirmation of Michael T. Krenrich, dated May 24, 2018, and attached exhibit;
3. Affidavit in Opposition of Ryan Horton, sworn to June 7, 2018, and attached exhibits