New York State Court of Claims

New York State Court of Claims

TYLER v. THE STATE OF NEW YORK, #2000-007-526, Claim No. 99394


Claimant contends that defendant failed to conduct a Tier III hearing in compliance with the relevant regulations and therefore that he is entitled to compensation for the days he was held on keeplock. Claim dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

John L. Bell
Claimant's attorney:
Keith Tyler, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Frederick H. McGown, III, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
July 6, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant contends that defendant failed to conduct a Tier III hearing in compliance with the relevant regulations and therefore that he is entitled to compensation for the days he was held on keeplock.

On October 11, 1998, claimant was served with a misbehavior report and placed on keeplock pending the disposition of the disciplinary charges. A hearing commenced on October 15. The hearing was adjourned, however, because claimant requested that two correction officers be produced as witnesses and the officers were not available to testify on October 15. Pursuant to the terms of the controlling regulation the hearing was to be completed within 14 days of claimant's initial confinement unless a properly authorized extension was granted (7 NYCRR 251-5.1[b]). An initial extension was granted to October 26 because the hearing officer was not available. Thereafter, various extensions were granted until November 10 because one of the witnesses requested by claimant was not available. The hearing was completed on November 10 and the charges against claimant were dismissed, thus ending his keeplock confinement. In the current claim he contends,
inter alia, that reasonable efforts were not made to locate the witnesses he had requested.
Disciplinary measures imposed consistent with the governing rules and regulations are covered by immunity (
Arteaga v State of New York, 72 NY2d 212). An inmate placed on restrictive confinement in a manner inconsistent with the governing rules and regulations may, however, seek monetary compensation (Ramirez v State of New York, 171 Misc 2d 677, 681; Gittens v State of New York, 132 Misc 2d 399). The relevant regulation provides, in part, that the hearing must be commenced within 7 days of confinement and completed within 14 days of confinement unless an extension is received from the Commissioner or his designee (7 NYCRR 251-5.1). Hearings can be properly extended beyond the 14-day period when a witness is not available (see, e.g., Matter of Di Salvo v Selsky, 260 AD2d 874, 875). The Appellate Division has instructed that the 14-day time limit is "directory, not mandatory" (Matter of Proctor v Coombe, 234 AD2d 749, 750; Matter of Chappelle v Coombe, 234 AD2d 779, 780). Indeed, even an unauthorized short delay beyond the 14-day limit may not necessarily be considered unreasonable or unlawful (Matter of Edwards v Coombe, 239 AD2d 798).
The evidence established that each extension of the 14-day period was granted following a timely request to the Commissioner's office in Albany. Claimant argues that the extensions that were granted because of the purportedly unavailability of Correction Officer Mercurio should not have been granted. He contends that no effort was made to contact Mercurio. Claimant supports such argument with the following colloquy from his Tier III hearing:
"[Hearing officer] TURNER: Okay. Officer Mercurio are you aware of any attempt that was made to get in touch with you to, regarding this hearing?

MERCURIO: No" (Claimant's Exhibit 1, at 17-18).

Assistant Deputy Superintendent Linda Turner testified that pursuant to established procedure, personnel in the Tier office made attempts to contact unavailable witnesses. The records of defendant reflect that several attempts were made to contact Mercurio (Defendant's Exhibit A, unnumbered page 5). Mercurio was off-duty and at a hunting camp until November 9. He returned to work on November 10 and the hearing was completed on such day. The fact that Mercurio was not aware that efforts were being made to contact him while he was in hunting camp does not lead to the conclusion, urged by claimant, that no such efforts were made. The proof before the court reflects that timely extensions were granted consistent with the controlling regulation and thus claimant is not entitled to a monetary recovery. To the extent the claim purports to assert any other theory of liability, the evidence at trial failed to establish liability of defendant.
The claim is dismissed and the Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

July 6, 2000
Plattsburgh, New York

Judge of the Court of Claims