New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2001-011-532, Claim No. 102793, Motion No. M-62894


Claimant's motion for summary judgment on this issue of liability with respect to the period of confinement is granted.

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):

Claimant's attorney:
Anthony Smith, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Paul F. Cagino, Esq., Assistant Attorney General)
Third-party defendant's attorney:

Signature date:
March 12, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has moved, and defendant has cross-moved for summary judgment in this claimalleging wrongful confinement.

The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Once this showing has been made the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial (Alvarez v Prospect Hospital , 68 NY2d 320).

To establish this cause of action for wrongful confinement Claimant must show that: (1) the defendant intended to confine him (2) that he was conscious of the confinement, (3) he did not consent to the confinement and (4) the confinement was not otherwise privileged (Broughton v State of New York, 37 NY2d 451). Here, the only issues disputed by the parties is whether Claimant consented to the confinement or the confinement was privileged.

The regulations promulgated by the Department of Correctional Services set forth the circumstances under which an inmate may be confined to his cell. An inmate may be confined to his cell where an officer has reasonable grounds to believe he represents an immediate threat to the safety, security or order of the facility or is an immediate danger to other persons or to property (7 NYCRR §251-1.6[a]). An inmate also may be confined to his cell or room where such action appears reasonably necessary for protection of the inmate. In any such case, however, the inmate shall not be so confined for more than 72 hours, and within such time period the inmate either be transferred to another housing unit, scheduled for transfer to another facility, released from such confinement or

placed in protective custody (7NYCRR §251-1.6[b]). Inmates may also be placed in either voluntary or involuntary protective custody (7 NYCRR §330.2). Where an inmate is placed in involuntary protective custody a hearing must be conducted within 14 days to determine the need for protective custody admission (7 NYCRR §330.3[b][1]). Detention admissions are also authorized where an inmate is received from another correctional facility and his record in the other facility raises a reasonable question as to whether he presently is ready to adhere to the department's rules and policies governing inmate behavior or in cases where an inmate is awaiting transfer from Southport

Correctional Facility or a double-celled SHU (7 NYCRR 301.3[a]).

In his affidavit in support of the motion Claimant maintains that on February 24, 1998 he was told by a correction officer that he was being placed on investigation status. According to Claimant he was then confined to his cell until April 30, 1998 when a request for involuntary protective custody was prepared by J. Mulholland, a counselor, and approved by the facility superintendent. On June 26, 1998 Claimant was transferred to Wende Correctional Facility and placed in general population. Claimant maintains that he was held in his cell for a total of 122 days without having been given a hearing.

Given that Claimant was not released within seventy-two hours, was not provided a hearing of any kind and was not transferred from another facility or awaiting transfer from Southport or a double celled SHU, his confinement to his cell from February 24, 1998 to April 30, 1998, was not authorized by the regulations. Accordingly, Claimant has established a prima facie case of wrongful confinement for the period from February 24, 1998 to April 30, 1998.

Because he was not provided a hearing within fourteen days, his confinement from April 30, 1998 until June 26, 1998 was not authorized under the regulations governing involuntary protective custody. However, Claimant has attached to his affidavit in support of the motion a copy of the form prepared by Mr. Mulholland requesting protective custody. The form is a request for voluntary protective custody. Though Claimant maintains that he did not request protective custody and points out that he did not sign the form on the line provided for the inmate's signature, there is no requirement in the regulations that a request for voluntary protective custody be in writing and signed by the inmate. Consequently, a question of fact is raised as to whether Claimant's cell confinement from April 30, 1998 to June 26, 1998 was at his request.

The only submission by Defendant in opposition to the motion and in support of the cross-motion is an affirmation by its attorney. The affirmation is not based upon personal knowledge and therefore, is not sufficient to establish the existence of material issues of fact or to make a prima facie showing of entitlement to judgment as a matter of law.

The motion for summary judgment is granted on the issue of liability with respect to the period of confinement from February 24, 1998 to April 30, 1998 and is, in all other respects, denied. The cross-motion is denied.

March 12, 2001
Saratoga Springs, New York

Judge of the Court of Claims

Papers Submitted:

1. Notice of Motion dated December 5, 2000
2. Affidavit in Support sworn to the 5th day of December, 2000 with exhibit annexed
3. Affirmation in Opposition and Cross-Motion to Dismiss of Paul F. Cagino, Esq. dated December 28, 2000
4. Affidavit in Opposition of Anthony Smith sworn to the 13th day of January, 2001