The claimant testified that on May 13, 1997 while he was a State prison inmate
at Arthur Kill Correctional Facility, upon returning to his assigned cubicle in
his housing unit, he discovered that his mattress had been rolled up on his bed,
and that personal papers which he had kept under the mattress were thrown about
the cubicle. He alleges that a Correction Officer, Sergeant Kilbane, was
responsible for the foregoing, and that Sergeant Kilbane then initiated a
disciplinary report which accused the claimant of failing to keep his living
space clean and orderly.
The claimant introduced into evidence three photographs of his cubicle which he
states were taken by Sergeant Kilbane to support the disciplinary charges
against the claimant. He also introduced a copy of the disposition report of
the hearing, at which the disciplinary charge was dismissed. In the report it
is stated that a search was done that was not authorized.
Upon the foregoing, the claimant seeks to hold the State liable for violation
of the search and seizure and equal protection provisions of the State
Constitution, on the authority of
Brown v State of New York
, 89 NY2d 172.
There is no direct evidence in the record to establish that Sergeant Kilbane,
or any other State employee, was responsible for the condition of the claimant's
cubicle. The claimant himself testified that he did not witness the incident,
but that he had learned from other inmates that it was the doing of Sergeant
Kilbane. Their statements to this effect are hearsay, and are inadmissible. The
determination at the disciplinary hearing, that a search was not authorized,
does not cure the claimant's failure of proof in this regard.
In addition, there was no evidence in support of the claimant's allegation
which relies upon the equal protection clause of the State Constitution
(Constitution, Article I, §11). Indeed, the allegation in the claim
(Paragraph 26) is itself insufficient to implicate that Constitutional
Nor would the determination at the disciplinary hearing, that a search was not
authorized, necessarily implicate the search and seizure clause of the State
Constitution (Constitution, Article I §12). There is insufficient
evidence about the circumstances surrounding the search, and the basis upon
which the conclusion was reached, to make such a determination.
See, Kingwood v Coombe
, 1997 WL 323913, (SDNY).
In any event, while holding that a cause of action to recover damages may be
brought against the State for violation of the equal protection or search and
seizure clauses of the State Constitution, the Court of Appeals in
limited the availability of a damage remedy against the State to
situations where no other remedy exists. According to the claimant's testimony,
and the hearing report, he had another remedy, the disciplinary hearing itself,
at which he was found not guilty of the charges which were based upon the
search, by successfully challenging the validity of the search. Had the
disciplinary charge been upheld administratively, the claimant could have
challenged such a determination, and the validity of the search, by way of CPLR
Article 78. See, e.g., Llull v Coombe
, 238 AD2d 761; Scott v
, 231 AD2d 727; Patterson v Coughlin
, 198 AD2d 899.
Thus, the situation presented is unlike that in Brown
, where the
Court concluded that, in the absence of any other remedy, damages were a
necessary deterrent for alleged violations of the Constitutional provisions,
noting: "Claimants are not charged with any crime as result of their detention
and thus exclusion has no deterrent value."
For the foregoing reasons the defendant's motion to dismiss the claim, made at
the conclusion of the claimant's case, and upon which decision was reserved, is
granted. The claim is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.