claimant Duane Moore's underlying claim, as filed, contained five
causes of action: the first for wrongful confinement in keeplock status at
Woodbourne Correctional Facility; the second and fourth for wrongful transfer
between correctional facilities; the third for wrongful removal of Moore from a
computer work program; and the fifth for wrongful issuance of a disciplinary
ticket to Moore and retaliatory sentencing in connection with the ticket. In an
order dated December 13, 1999 and filed January 11, 2000, this Court dismissed
the second, third and fourth causes of action. This is Moore's reargument
motion pursuant to CPLR §2221(d) with respect to the dismissal of the
second and fourth causes of action.
second cause of action, he alleged that his transfer from Woodbourne
Correctional Facility to Otisville Correctional Facility was "arbitrary and
capricious, retaliatory. . . wrongful and punitive . . ." He did not elaborate,
but appeared to assert that he was transferred because of allegations that he
was involved in an incident involving a stolen computer and pornography. In his
fourth cause of action, he alleged that a transfer from Otisville Correctional
Facility to Riverview Correctional Facility was punitive and in retaliation for
complaints he had made about the previous transfer, about being removed from a
computer program and about being placed in keeplock status.
Moore's second and fourth causes of action were dismissed on the grounds that
the decision to transfer inmates between correctional facilities "lies within
the discretion of the Commissioner of Corrections . . ." Matter of Gregg v
Scully, 108 AD2d 748, 749, 485 NYS2d 94, 96 (2d Dept 1985), lv denied
65 NY2d 601, 491 NYS2d 1026 (1985). It was also noted that while a "clearly
stated impermissible reason" could be grounds for voiding a transfer, such would
be effected via an Article 78 proceeding in Supreme Court. Id.
CPLR 2221(d)(2) provides in relevant part that a motion for leave to reargue
"shall be based upon matters of fact or law allegedly overlooked or
misapprehended by the court in determining the prior motion . . ." Moore
asserts that the court overlooked that while there is broad discretion to
transfer inmates between correctional facilities, a transfer may not be effected
"solely in retaliation for exercising or denying constitutional rights . . ."
See p. 2 of the September 5, 2000 affidavit of Duane Moore.
First, it should be noted that in his claim, Moore did not assert that his
constitutional rights had been denied or that he had been retaliated against for
exercising such rights. In any event, all state cases cited by Moore on this
point are Article 78 proceedings in Supreme
To the extent that Moore has cited
federal cases involving 42 U.S.C. §1983 claims, it is "settled law" that
such claims "cannot be pursued against the State of New York in the Court of
Claims. . ." De La Rosa v State of New York
, 173 Misc 2d 1007, 1009, 662
NYS2d 921, 923 (Ct Cl 1997).
Claimant also asserts that the Court's previous order was "premature." In view
of the fact that this Court is not the appropriate forum for Moore's second and
fourth causes of action, the order dismissing such causes of action was
For the foregoing reasons, having reviewed the parties'
IT IS ORDERED that motion no.
M-62355 is denied.