The following papers were reviewed by the court on this motion: Claimant's
Notice of Motion, Claimant's Affidavit in Support and annexed Exhibits A-G,
Claimant's "Answer to Affirmation in Opposition," Defendant's Affirmation in
Opposition and annexed Exhibit 1, Filed Claim and Verified Answer.
Claimant, Damon Gidney, a pro se inmate, has moved for an order
striking the Verified Answer filed by defendant, the State of New York, and
granting summary judgment in his favor pursuant to Civil Practice Law and
Rules(CPLR) R 3212.
Claimant puts forth numerous allegations of wrongdoing committed by the
defendant in his Claim. Specifically, claimant brings this action sounding in
false imprisonment. Claimant alleges that he was wrongfully confined from
December 24, 1999 until April 10, 1999. He alleges the facts and circumstances
in his Claim as follows. On December 24, 1999 claimant was incarcerated at the
Green Haven Correctional Facility(Green Haven) when he was then transported with
16 other inmates to the Upstate Correctional Facility double bunk Special
Housing Unit (SHU), S-200 Disciplinary Unit. On December 27, 1999 at the
Upstate Correctional Facility the claimant was served with a Tier III
Superintendent's proceeding misbehavior report, charging the claimant with
violating Rule 104.12 of the Standards of Inmate Behavior in All Facilities. At
the Tier III Superintendent's Proceeding held on December 30, 1999, claimant was
found guilty of violating Rule 104.12, which in pertinent part states that
claimant intended a planned work stoppage and intended to create an atmosphere
which would pose a threat to the safety and security of both inmates and staff.
Claimant was sentenced to 12 months of special housing unit confinement, 20 days
keep-lock, 13 months loss of packages, 12 months loss of commissary, 12 months
loss of phone privileges and 12 months recommended loss of good time. Claimant
administratively appealed this decision on January 20, 2000. On March 6, 2000,
the claimant received a statement from the Director of Special Housing that the
decision rendered at the December 30, 1999 hearing was reviewed and modified.
On March 9, 2000, the Prisoner's Legal Services submitted an appeal on
claimant's behalf. On March 28, 2000, claimant received a statement from the
Director of Special Housing in which claimant was informed that hearing decision
rendered on December 30, 1999 was reversed on March 24, 2000. Claimant alleges
that he was not released from the SHU confinement until April 10, 2000.
Defendant, in its opposition papers, asserts that this claim must be dismissed
since it did not receive a Claim from claimant until September 28, 2000.
Claimant asserts in his Affidavit that a Notice of Intention to File a Claim
against the State of New York was served on the Attorney General's Office on
June 6, 2000. In support of this assertion, claimant has attached, as part of
Exhibit A, a copy of a certified mail receipt, dated June 7, 2000. This
receipt lists the Attorney General's Office, Department of Law, Albany N.Y.
12224 as the intended recipient. Therefore, it appears that a timely Notice of
Intention was served on the Attorney General's Office and a dismissal is not
warranted upon the grounds of untimeliness.
However, claimant's motion for summary judgment must be denied. The defendant
may be entitled to immunity for a substantial period of claimant's confinement.
Arteaga v State of New York, 72 NY2d 212, 532 NYS2d 57(1988).
Therefore, for the foregoing reasons, claimant's motion for summary judgment