New York State Court of Claims

New York State Court of Claims

ROSS V. THE STATE OF NEW YORK, #2001-019-526, Claim No. 97490, Motion No. M-62925


State's motion for summary judgment granted. State entitled to immunity for the imposition of disciplinary measures.

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:
BY: Earl F. Gialanella, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 23, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant State of New York (hereinafter "State") has made a motion for summary judgment pursuant to CPLR 3212.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed December 12, 1997.
  2. Notice of Motion No. M-62925, dated January 4, 2001, and filed January 8, 2001.
  3. Affirmation of Earl F. Gialanella, AAG, in support of motion, dated January 4, 2001, with attached exhibits.
  4. "Affirmation" of Christopher Ross, in opposition to motion, dated March 16, 2001, and filed March 23, 2001, with attached exhibits.
On October 27, 1997, Claimant was incarcerated at Elmira Correctional Facility and had been transported to the Chemung County Courthouse for a court appearance. Claimant and his attorney, Richard Rich, were behind closed doors in a conference room while Correction Officers Tipton and Andrews were standing guard outside the door for security purposes. Claimant and Attorney Rich began arguing loud enough for Officer Tipton to overhear the conversation through the closed door. Officer Tipton issued a misbehavior report alleging that Claimant allegedly stated to Attorney Rich "mess up this case and I'm not going to be in jail forever, I know where you live"; and when Mr. Rich asked if Claimant was threatening him, Claimant responded "it's a promise". (Claim, Exhibit B). The misbehavior report cited Claimant's violation of facility rule 102.10 which prohibits inmates from making threats under any circumstances. Claimant was found guilty at his Tier III hearing and was sentenced to keeplock for 60 days and a loss of all privileges.

Claimant filed and served this Claim alleging the State's negligence, invasion of privacy, and breach of attorney-client privilege. Claimant's contends that his conversation with Attorney Rich was privileged and could not be disclosed without his consent nor was the threat a facility matter subject to misbehavior reports. The State moves for summary judgment on the grounds that the actions of the Correction Officers are entitled to immunity and, in any event, the communication at issue was not protected by the attorney-client privilege. On a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068).

The State's first ground for summary judgment is that the disciplinary measures imposed were consistent with the governing rules and regulations and are thereby covered by immunity. (Arteaga v State of New York, 72 NY2d 212). It is well-settled that the State can be liable for disciplinary measures if an inmate is placed on restrictive confinement in a manner that violates the governing rules and regulations. (Ramirez v State of New York, 171 Misc 2d 677, 681). Initially, the Court notes that Claimant does not allege in either his Claim or opposing papers that the State violated any Facility rule or regulation governing the conduct or timing of the underlying hearing. The only possible procedural problem alluded to in the Claim is that Attorney Rich never responded to the Hearing Officer's messages for him to appear as a witness. However, the Hearing Officer completed a form entitled "Superintendent's & Disciplinary Hearings - Witness Interview" in which his unsuccessful attempts to contact Mr. Rich were documented and which was signed by Claimant. (Affirmation of Earl F. Gialanella, AAG, Exhibit B). Consequently, Claimant has failed to present any evidentiary proof in admissible form that the State violated any rule or regulation in the course of imposing this disciplinary measure. As such, the State is entitled to summary judgment on the grounds that the disciplinary measures were covered by immunity, since they were imposed in a manner consistent with the governing rules and regulations.

Additionally, the State also contends that the attorney-client privilege did not attach to the communication at issue as a matter of law. The general principles of the attorney-client privilege can be outlined into four points. (CPLR 4503). First, an attorney-client relationship must be established. Second, the communication at issue must be confidential and made for the purpose of obtaining legal advice or services. Third, the party asserting the privilege holds the burden of proving each element of the privilege. Fourth, even where the technical requirements of the privilege are satisfied, it may, nonetheless, yield in a proper case, where strong public policy requires disclosure. (Matter of Priest v Hennessy, 51 NY2d 62, 68-69). Here, the first element, the existence of an attorney-client relationship, is not in dispute.

Next, for attorney-client privilege to be applicable the communication at issue must have been confidential and made for the purpose of obtaining legal advice or services. (Matter of Jacqueline F., 47 NY2d 215, 219). Here, Claimant's statement was clearly threatening bodily harm to his lawyer if the results of his case were not satisfactory and, as such, was of a non-legal nature. By posing a threat toward his lawyer, Claimant shifted the conversation away from its original purpose of legal representation, and as a result, relinquished his attorney-client privilege relative to this statement. The second issue that arises out of this element is whether the communication was confidential. The State asserts that Claimant could not have intended his statement to be confidential since he spoke at a level loud enough to be heard through a closed door. Moreover, the State contends that the correction officers, for their part, were performing a routine duty of providing security and did not do anything to intentionally eavesdrop on the conference between Claimant and his attorney. (People v Harris, 57 NY2d 335, 343, cert denied 460 US 1047). On the other hand Claimant argues he was not allowed a private conference where his conversation would not be overheard. However, in this Court's view, a question of fact arises as to whether the level of the conversation between Claimant and Attorney Rich was loud enough for the correction officers to accidently overhear. Nevertheless, the State is entitled to summary judgment on the issue of immunity as set forth hereinabove.

Accordingly, in view of the foregoing, it is ORDERED that the State's Motion for Summary Judgment, Motion No. M-62925, is GRANTED and Claim No. 97490 is DISMISSED.

April 23, 2001
Binghamton, New York

Judge of the Court of Claims