New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2000-016-098, Claim No. 100152, Motion No. M-62355


Pro se's reargument motion re order dismissing causes of action based on transfer between correctional facilities and removal from a computer program was denied.

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):

Alan C. Marin
Claimant's attorney:
Duane Moore
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Earl F. Gialanella, AAG
Third-party defendant's attorney:

Signature date:
November 17, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Pro se 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.[1] In Moore's 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 Court.[2] 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 appropriate.

For the foregoing reasons, having reviewed the parties' submissions,[3] IT IS ORDERED that motion no. M-62355 is denied.

November 17, 2000
New York, New York

Judge of the Court of Claims

  1. [1]CPLR 2221(d)(3) provides in relevant part that a reargument motion "shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." Moore asserts that he received a courtesy copy of the Court's previous order along with a cover letter to defendant directing it to serve the order on all appropriate parties. He further asserts that defendant never served him pursuant to the Clerk's directions and that this motion is thus timely. Defendant has not disputed Moore's assertions in this regard.
  2. [2]Matter of Salahuddin v Coughlin, 202 AD2d 835, 609 NYS2d 105 (3d Dept1994); Matter of Johnson v Ward, 64 AD2d 186, 409 NYS2d 670 (3d Dept 1978); Matter of Henry v Coughlin, 189 AD2d 1054, 592 NYS2d 903 (3d Dept 1993); Matter of Cole v Smith, 84 AD2d 942, 446 NYS2d 682 (4th Dept 1981).
  3. [3]Along with the pleadings, the following were reviewed: claimant's notice of motion with affidavit in support and Exhibit A; defendant's affirmation in opposition; and claimant's "Reply to Opposition for Reargument."