New York State Court of Claims

New York State Court of Claims

GAGNE v. THE STATE OF NEW YORK, #2001-013-028, Claim No. 99329, Motion No. M-63262


Defendant is entitled to summary judgment where documentary evidence establishes that Claimant was not entitled to be released from keeplock at the point that the Department of Correctional Services received an order vacating a prior sentence. Claimant lacks standing to assert a cause of action on behalf of a prison visitor whose visitation privileges were revoked.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 13, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On August 15, 2001, the following papers were read on Defendant's motion for summary judgment dismissing the claim:
1. Notice of Motion and Supporting Affirmation of Paul Volcy, Esq. ("Volcy Affirmation"), with Annexed Exhibits

2. "Affirmation"[1] in Opposition of Stephen Gagne, pro se ("Gagne Affidavit"), with Annexed Exhibits; Memorandum of Law with Annexed Exhibits

3. Filed Papers: Claim; Answer This claim arose at Wende Correctional Facility on October 29, 1998 when, according to Claimant, he was entitled to be released from keeplock and to have his spousal visitation privileges restored. Defendant has now moved for summary judgment in its favor on the ground that, as a matter of law, Claimant cannot prevail in his claim.

The background of the claim is not in dispute. On November 5, 1997, Claimant was charged with violations of facility rules and, subsequently, he was sentenced to 90 days in keeplock.[2] On December 15, 1997, while he was serving his sentence, he was informed that the visitation privileges of the person he identifies as his wife (Claim, ¶7) had been revoked. On October 22, 1998, in a proceeding in Erie County Supreme Court, the result of the hearing was vacated and Claimant was held to be entitled to a rehearing on the original misbehavior report (Volcy Affirmation, Exhibit C). A copy of the order was received by the Department of Correctional Services (DOCS) on October 29, 1998, and on that day DOCS Counsel's Office directed that the result of the initial disciplinary hearing be expunged (id.).[3] Claimant contends that as of that date he should have been released from keeplock and his wife's visitation privileges should have been restored.

Defendant contends, however, that it had no obligation to release Claimant from keeplock on October 29th because at that time he was continuing to serve a sentence on unrelated charges. In fact, in a memorandum dated November 9, 1998, the Deputy Superintendent for Security informed Claimant that he was being retained in keeplock status "because of offenses committed after this hearing that is now being" reheard (id.). A copy of Claimant's disciplinary record, from which the November 5, 1997 charge has been expunged (Volcy Affirmation, Exhibit G) shows that in connection with other charges, he was sentenced to keeplock for the following periods: February 3, 1998 - April 4, 1998; April 4, 1998 - October 1, 1998; October 1, 1998 - November 30, 1998; November 30, 1998 - January 29, 1999; January 29, 1999 - April 29, 1999. It is evident from this record that on October 29, 1998, when the charges arising from the November 5, 1997 charges were vacated, DOCS had no obligation to release him from keeplock because, at that point in time, he was serving a sentence on an unrelated charge.

In his submissions in opposition to this motion, Claimant appears at some points to shift his challenge and to argue that he should not have served any additional time in keeplock during the months of March, April and May 1999, after the conclusion of his rehearing on the November 5, 1997 charges (Gagne Affidavit ¶¶8, 9 and Exhibit 2). The claim in this action, however, contains no reference to such period of confinement and, in fact, alleges repeatedly that he is seeking compensation for wrongful confinement because he should have been released from keeplock on October 29, 1998. It is beyond the power of this Court to incorporate new allegations into the claim, without a formal request from Claimant and without providing Defendant an opportunity to respond to that request.

With respect to that portion of the claim relating to Claimant's asserted right to spousal visitation, documentation provided by Defendant establishes that that restriction was not imposed as a penalty on Claimant but, instead, was a separate restriction placed on his visitor, Maria Regina, who is also referred to as Maria Regina/Gagne. There is a connection between this restriction and the November 5, 1997 charges against Claimant because that misbehavior report made out against Claimant alleged that he conspired "with visitor Maria Regina and other individuals to sell a quantity of heroin and marihuana and have the drugs smuggled into Wende..." (Volcy Affirmation, Exhibit C). The December 1997 letter informing Ms. Regina/Gagne that her visitation rights with any DOCS inmate were revoked also states that that action was based on information that came through the course of an investigation into the activities of Claimant (Volcy Affirmation, Exhibit D). The letter also informed Ms. Regina of the steps she should take if she wished to appeal the determination. Although it appears that Ms. Regina initially joined Claimant in the petition to the Erie County Supreme Court (Gagne Affidavit, Exhibit 1; Gagne Memorandum of Law, Exhibit 3), the only decision of that Court which is included in the submissions before me relates only to Claimant and deals only with the disciplinary charges against him (Volcy Affirmation, Exhibit C). This Supreme Court ruling had no effect on the restriction imposed on Ms. Regina. In any event, the restriction was placed on Ms. Regina's visitation privileges, not on Claimant's ability to receive visitors and thus, Claimant has no standing to maintain an action for interference with such privileges.

Defendant's motion is granted and Claim No. 99329 is dismissed.

November 13, 2001
Rochester, New York

Judge of the Court of Claims

  1. [1]Claimant's submission is captioned "Affirmation in Opposition." He is not an attorney, physician, osteopath, or dentist, however, and therefore is not entitled to submit an affirmation (CPLR 2106). He may only submit an affidavit in opposition to the motion.
  2. [2]In his claim, Claimant states that he was sentenced to 90 days in keeplock. In his Memorandum of Law (p. 1) submitted in opposition to this motion, he states that the sentence was 180 days in keeplock. This difference has no effect on the issues raised in either the claim or this motion.
  3. [3]I note that a rehearing was commenced on November 6, 1998, and Claimant was once again found guilty.