New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2001-015-180, Claim No. 103283, Motion No. M-63594


Court denied claimant's motion to vacate prior decision and order under either CPLR 221 or 5051 where claim failed to state cause of action and was properly dismissed on State's motion.

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:
Antonio Brown, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 24, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The pro se claimant's motion for an order vacating the decision and order of this Court dated April 3, 2001 and filed on April 6, 2001 is denied. The claim seeks money damages in the amount of $90,000.00 for personal injuries, including mental anguish, pain and suffering allegedly sustained by claimant as a result of his confinement to a cell in the Special Housing Unit (SHU) at the Oneida Correctional Facility in Marcy, New York. The confinement occurred as a result of the filing of a misbehavior report against the claimant on August 11, 2000 by Correction Officer G. Coward. The report alleged that on August 10, 2000 the claimant engaged in a conversation with Correction Officer Coward which she determined to be employee harassment in violation of the institutional rules of conduct Rule 107.11 (7 NYCRR 270.2 [B][8][ii]). A Tier III hearing was held on August 15 and August 16, 2000 before Captain Cabriola who found the claimant guilty of the charge of harassment as alleged by Correction Officer Coward.[1] As a result of the hearing, claimant was sentenced to 90 days keeplock and loss of commissary and telephone privileges for a period of 60 days. The disposition and the penalty imposed were affirmed on administrative appeal. Despite the affirmance, claimant in opposition to the defendant's earlier dismissal motion alleged that the correction officers who testified at his Tier III hearing engaged in an unlawful conspiracy and offered false testimony against him.

Although claimant did not initially cite the section of law under which the instant motion was made, in his reply[2] he refers to CPLR 5015 and in the alternative requests that the Court treat the motion as one to reargue pursuant to CPLR 2221. His affidavit in support of the motion alleges that the Court misapprehended the facts alleged, particularly with regard to the evidence offered against him at his disciplinary hearing. The Court upon review of the papers submitted on the instant motion is not convinced of any factual misapprehension and claimant's motion, considered as one pursuant to CPLR 2221(d) to reargue the defendant's prior motion to dismiss the claim is hereby denied.

Considering the claimant's alternative request to treat this motion as one seeking relief pursuant to CPLR 5015 the Court finds claimant's argument in that regard equally unpersuasive. Rule 5015 permits a court which rendered an order to relieve a party from it upon such terms as may be just based upon one of the following grounds: excusable default; newly discovered evidence; fraud, misrepresentation or other misconduct of an adverse party; lack of jurisdiction; or reversal, modification or vacatur of the prior judgment or order upon which it is based.

Claimant on this motion seeks to convince the Court that the witnesses at his Tier III disciplinary hearing were untruthful and that the Court's dismissal of the claim should be vacated on that basis. The truthfulness of such witnesses was a question to be resolved by the designated hearing officer whose determination in this regard and resulting finding of guilt was reviewed and affirmed by the facility superintendent or his designee upon claimant's administrative appeal. It was not a matter for review by this Court on the prior motion. In addition, the movant has submitted no proof to support his motion other than the following conclusory allegation contained in paragraph (7) of his affidavit in support:
7. Claimant has evidence that substantiates his claim that employees of the defendant acted maliciously in nature and exceeded the scope of their authority by using false words to abuse a legal process to cause claimant harm.
Moreover, claimant argues that his claim should not have been dismissed on the prior motion because it states a cause of action for false words causing special damages. Even if claimant had alleged that his claim contained such a cause of action (a position he espouses for the first time on this motion) the claim would have been dismissed because it did not contain an allegation that the alleged perjury of the witnesses against him at his disciplinary hearing had been proven by criminal conviction (Andrews v Steinberg, 122 Misc 2d 468) nor did the claim allege special damages, i.e., economic damage or injury to claimant's reputation (Andrews v Steinberg, supra at 471). These are essential elements of a cause of action for false words causing special damages.

Dismissal of the claim for failure to state a cause of action was proper (see, Ramirez v State of New York, 171 Misc 2d 677) and claimant's motion seeking to vacate or reargue the prior order of dismissal is, in all respects, denied.

September 24, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 27, 2001;
  2. Affidavit of Antonio Brown sworn to June 5, 2001;
  3. Affirmation of Joel L. Marmelstein dated June 19, 2001;
  4. Reply of Antonio Brown dated July 3, 2001.

[1]It does not appear that claimant was separately charged with employee harassment concerning an earlier incident involving another female correction officer (Brundige) despite the claimant's present assertion to the contrary.
[2]The document referred to as a "reply to opposition to motion to vacate" is not in affidavit form nor were its contents sworn to before a notary. Absent the objection of defendant's counsel and in light of his decision to address the sufficiency of the claimant's allegations this Court will treat the technical defect as having been waived (see, Sam v Town of Rotterdam, 248 AD2d 850).