|Claimant(s):||KAREEM LEE, 04-A-4085|
|Claimant short name:||LEE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Kareem Lee, 04-A-4085, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Ray A. Kyles, AAG
|Third-party defendant's attorney:|
|Signature date:||June 29, 2021|
|See also (multicaptioned case)|
Claimant, proceeding pro se, filed a claim for wrongful confinement with the Clerk of the Court on May 30, 2019. Defendant interposed an answer on June 13, 2019. Claimant then filed an amended claim on July 3, 2019. Defendant interposed an amended answer on August 15, 2019. Claimant now moves for summary judgment and defendant opposes the motion.
The claim alleges that on February 14, 2019, claimant was charged in a misbheavior report with violating prison disciplinary rules 106.10 (direct order); 100.11 (assault on staff); 104.11 (violent conduct); 115.10 (frisk procedures); and 107.10 (interference).
On February 28, 2019, claimant's Tier III disciplinary hearing commenced and was adjourned. The hearing resumed on March 15, 2019 and was adjourned again. On March 29, 2019, the hearing was not recommenced, but was dismissed without completion and claimant was released from the Special Housing Unit (SHU).
Claimant alleges that defendant violated 7 NYCRR 251-5.1 (a), which requires disciplinary hearings to be commenced no later than seven days after an inmate's initial confinement. He further alleges that defendant violated 7 NYCRR 251-5.1 (b) by failing to complete his hearing within 14 days from the date of the misbehavior report.(1) Claimant was confined to the SHU from February 14, 2019 through March 29, 2019.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 ). The Court's function on a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247, 254 ). The proponent of a motion for summary judgment must establish a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (id.; Winegrad New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New York, 49 NY2d 557, 562 ). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept. 1983]). A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (CPLR 3212 [b]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
To establish a claim of 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. 2015], lv dismissed 27 NY3d 972  [internal quotation marks and citations omitted]; accord Miller v State of New York, 124 AD3d 997, 998 [3d Dept. 2015]).
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" (hereinafter DOCCS) (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]). Thus, so long as defendant's confinement of claimant was "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  [citations omitted]; see generally Tarter v State of New York, 68 NY2d 511, 518-519 ). "Notably, '[i]t is defendant and not claimant who bears the burden of proving that confinement was privileged'" (Ifill v State of New York, 2013 NY Slip Op 52338[U], 46 Misc 3d 1228[A], *7 [Ct Cl 2013], quoting Nelson v State of New York, 2008 NY Slip Op 51609[U], 20 Misc 3d 1125[A], *2 [Ct Cl 2008], affd 67 AD3d 1142 [3d Dept. 2009]; see also Gonzalez v State of New York, 110 AD2d 810, 812 [2d Dept. 1985], appeal dismissed 67 NY2d 647 ; Sanabria v State of New York, 29 Misc 3d 988, 991-992 [Ct Cl 2010]). However, "not all disciplinary hearing procedural rules and regulations, if violated, form a basis to abrogate the immunity afforded to employees of the Department of Corrections and Community Supervision 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]).(2)
Pursuant to 7 NYCRR 251-5.1 (1), where an inmate is confined pending a disciplinary hearing, the hearing must be commenced within seven days of the inmate's confinement. The papers submitted in support of claimant's motion largely repeat the allegations contained in the amended claim. In response, defendant submits a document showing that claimant's hearing was scheduled to commence on February 21, 2019--seven days following claimant's initial confinement--but the start date was extended to February 22, 2019 due to the unavailability of a hearing officer to conduct the hearing (Affirmation of Ray A. Kyles, AAG, Exhibit F). The start date of the hearing was extended once more, and claimant's hearing did not commence until February 26, 2019--12 days after claimant's initial confinement.(3) After several adjournments, the final entry in the Disciplinary Hearing Extension Request form for claimant's hearing indicates that a final adjournment was granted, allowing defendant to complete the hearing by March 27, 2019 (id.).
It is clear from the record that defendant commenced claimant's hearing one day late, in contravention of 7 NYCRR 251-5.1 (a). However, a violation of 7 NYCRR 251-5.1 (a) alone does not implicate minimal due process protections, and therefore does not establish claimant's entitlement to summary judgment (see Soto v Walker, 44 F3d 169, 173 [2d Cir 1995] [no right to a speedy trial in prison disciplinary proceedings]; see also Amato v State of New York, UID No. 2014-041-038 [Ct Cl, Milano, J., June 26, 2014]). As to claimant's allegations that the hearing was not completed within 14 days, 7 NYCRR 251.-5.1 (b) states that "[w]here a delay is authorized, the record of the hearing should reflect the reasons for any delay or adjournment, and an inmate should ordinarily be made aware of these reasons unless to do so would jeopardize institutional safety or correctional goals." It appears from the record that defendant requested to extend the time to complete claimant's hearing on eight separate occasions (Kyles Aff., Exhibit F). Thus, questions of fact exist as to whether defendant timely commenced and completed claimant's hearing, precluding summary judgment for claimant (see Hernandez v State of New York, 48 Misc 3d 218, 223 [Ct Cl 2015] [multiple extension requests raised question of fact as to whether claimant's hearing was timely completed]).
Based upon the foregoing, claimant's motion for summary judgment (M-96208) is DENIED.
June 29, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice of Motion for Summary Judgment, dated November 9, 2020; and Affidavit in Support of Motion for Summary Judgment, sworn to by claimant on November 9, 2020, with Exhibits annexed thereto.
2. Affirmation in Opposition to Claimant's Motion for Summary Judgment, affirmed by Ray A. Kyles, AAG on February 2, 2021, with Exhibits A through F annexed thereto.
1. Claimant's motion for summary judgment includes a new theory of liability--that defendant violated 7 NYCRR 251-1.6, which allows an inmate to be confined to a cell, room, or housing area where a correction officer holds a reasonable belief that the inmate is a threat to the safety, security or order of the facility. However, the amended claim does not include this allegation. Accordingly, claimant cannot raise this new theory of liability for the first time in a motion for summary judgment (Carroll v New York City Health and Hosps. Corp., 177 AD3d 560, 561 [1st Dept. 2019]; Price-Linden v State of New York, 119 AD3d 1192, 1192-1193 [3d Dept. 2014]; Yousefi v Rudeth Realty, LLC, 61 AD3d 677, 678 [2d Dept. 2009]).
2. Unpublished decisions and selected orders of the Court of Claims are available at http://www.nyscourtofclaims.state.ny.us.
3. The amended claim states that claimant's Tier III hearing commenced on February 26, 2019, but the papers submitted by defendant indicate that the hearing commenced on February 28, 2019 (Kyles Aff., Exhibit D). The discrepancy does not change the Court's substantive analysis, as both dates occurred after the seven day period for commencing disciplinary hearings (7 NYCRR 251-5.1 ).