New York State Court of Claims

New York State Court of Claims

KNIGHT v. THE STATE OF NEW YORK, #2002-015-308, Claim No. 104458, Motion No. M-65115


Court granted summary judgment dismissing claim for malicious prosecution and State Constitutional tort.

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

Signature date:
December 19, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion for summary judgment seeking an order dismissing the claim on the grounds that there are no factual issues requiring a trial and that the claim is without merit is granted. The claim apparently seeks to recover money damages for malicious prosecution and the alleged violation of claimant's constitutional right to due process and to be free from cruel and unusual punishment. It arose from certain events allegedly occurring on February 6, 2001, February 15, 2001 and March 15, 2001 while claimant was incarcerated at Marcy Correctional Facility and Auburn Correctional Facility. Claimant asserts that as a result of an altercation between himself and another inmate he was charged in a misbehavior report with violations of the standards of inmate behavior contained in 7 NYCRR Part 270. While he alleges that he was ultimately determined to be not guilty of violating the standards this allegation is refuted by Exhibits submitted by both parties on the motion including tape recordings of the superintendent's hearing which demonstrate claimant pled guilty to three of the five charges. He further alleges that he was separately charged with certain violations of the New York State Penal Law in the Justice Court for the Town of Marcy upon an allegedly false complaint by an unnamed member of the New York State Police. It is further alleged that the filing of the criminal charges in Marcy Town Court somehow jeopardized his anticipated release on parole. Additionally, he alleges that he was stabbed under his left eye by another inmate and that "nothing was done about it by the administration, at the Marcy Corr. Fac.". Claimant seeks $12,012,099.00 in damages.

The defendant moved for an order dismissing the claim on the grounds that this Court lacks subject matter jurisdiction to hear the claim or, alternatively, that there are no factual issues requiring a trial and the claim lacks merit. By decision and order dated August 5, 2002 (filed August 8, 2002) this Court dismissed any and all causes of action in the claim premised upon violations of the United States Constitution (see, Brown v State of New York, 89 NY2d 172). The decision further granted the State's request to convert the defendant's motion to dismiss to a motion for summary judgment[1] regarding causes of action based upon malicious prosecution and any State constitutional tort claim. Claimant was granted sixty days to oppose the motion for summary judgment or to advise the Court in writing of his intention not to oppose the motion.

In order to grant summary judgment, a Court must find that there are no triable issues of material fact. "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). Once the movant establishes his or her prima facie entitlement to summary judgment, the burden shifts to the opposing party to come forward with admissible proof establishing the existence of a material issue of fact requiring a trial (Leek v McGlone, 162 AD2d 504). Should the moving party fail to make a prima facie showing of its entitlement to judgment as a matter of law, the motion will be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320).

The instant motion is supported by defense counsel's affirmation and copies of the following: claim, notice of intention, verified answer, inmate misbehavior report, superintendent's hearing disposition sheet, investigation reports; affirmance of superintendent's hearing result; information/complaint; recommendation and consent of district attorney; Town Court criminal charges disposition sheet and an inmate information sheet dated 3/26/02.

Claimant's opposition to the motion consists solely of various exhibits A-T and a cover sheet entitled "affidavit opposing summary judgment" which is not sworn to before a notary public and, if objected to, would not be entitled to judicial cognizance (see, Doumanis v Conzo, 265 AD2d 296). Here, although defense counsel obviously intended to object to the claimant's failure to submit a proper affidavit opposing the motion, counsel's objection is contained within an unsigned affirmation which likewise is undeserving of judicial cognizance. Defendant's objection to the legal insufficiency of claimant's opposing papers is thus deemed to have been waived (see, Sam v Town of Rotterdam, 248 AD2d 850). Thus, the Court will consider the State's motion as having been opposed.

Defense counsel alleges in his supporting affirmation that the allegations in the claim fail either to establish a cause of action for malicious prosecution or to present the factual predicates necessary for a constitutional tort claim under the New York State Constitution as recognized in Brown v State of New York, 89 NY2d 172.

In Kenyon v State of New York, 118 AD2d 942, 944 the Appellate Division, Third Department stated, "[t]here are four basic elements necessary to sustain a cause of action for malicious prosecution: '(1) the initiation of a proceeding, (2) its termination favorable to plaintiff [or claimant], (3) lack of probable cause, and (4) malice' (Colon v City of New York, 60 NY2d 78, 82)." The record, including claimant's own collective submissions, demonstrates that the criminal charge of assault in the third degree set forth in the information/complaint (Claimant's Exhibit H) and filed against claimant by a member of the New York State Police in the Marcy Town Court stemmed from a plea bargain in which two counts of assault in the second degree and one count of promoting prison contraband in the first degree were reduced to assault in the third degree (see, Claimant's Exhibit H). The entry of a plea of guilty to assault in the third degree by the claimant and the imposition of the agreed upon sentence of 90 days to run concurrently with his then pending State sentence are evidenced by the motion record (see, Claimant's Exhibit H and Defendant's Exhibit H3). Such a plea does not constitute a termination of the charge in claimant's favor. Thus, despite his contrary assertion on the motion claimant cannot establish a favorable termination of the charges and therefore cannot maintain a cause of action for malicious prosecution (see, Kenyon v State of New York, supra). Accordingly, the portion of the instant claim alleging such a cause of action must be dismissed.

Similarly, claimant's alleged cause of action in constitutional tort also fails. Here claimant asserts in very broad language that actions (or inaction) of Department of Correctional Services (DOCS) officials violated his "rights to due process of the law, and to be free from cruel and unusual punishment . . . "

The Court of Appeals has determined that this court has jurisdiction to entertain constitutional tort claims which it defined as "any action for damages for violation of a constitutional right against a government or individual defendants" (Brown v State of New York, 89 NY2d 172, 177). Although defined broadly, the holding in Brown was a narrow one limited to the recognition of "a cause of action to recover damages . . . asserted against the State for violation of the Equal Protection and Search and Seizure Clauses of the State Constitution" (Brown v State of New York, supra at 188).

Central to the finding of a viable constitutional tort cause of action and dispositive in this matter is the fact that in Brown implying a damage remedy was necessary to ensure the full realization of the claimants' constitutional rights. Because the Brown claimants were not charged with a crime and the alleged constitutional violations were not ongoing, alternative relief such as the exclusion of evidence, injunctive or declaratory relief were unavailable to ensure the effectiveness of the subject constitutional protections. Consequently the Court found that for those claimants "it is damages or nothing" (Brown v State of New York, 89 NY2d at 192; citing Bivens v Six Unknown Fed. Narcotics Agents, 403 US 388). The instant claim is distinguishable, however, since here claimant was charged with a crime and voluntarily chose to enter a plea of guilty as part of a negotiated disposition of the charges against him.

The narrow scope of the holding in Brown and the importance of the unavailability of alternative remedies in stating a cognizable constitutional tort claim was further illustrated in Martinez v City of Schenectady, 97 NY2d 78. In that case the plaintiff sought to suppress evidence obtained pursuant to an invalid search warrant. County Court's denial of a motion to suppress was ultimately reversed by the Court of Appeals and the indictment dismissed. Thereafter, the plaintiff brought suit against the City and certain police officers asserting malicious prosecution, false imprisonment and constitutional tort causes of action. The Court of Appeals in that case at page 83-84 found, insofar as relevant here, that a cognizable constitutional tort claim had not been asserted upon the following analysis:
The remedy recognized in Brown addresses two interests: the private interest that citizens harmed by constitutional violations have an avenue of redress, and the public interest that future violations be deterred. In Brown itself, neither declaratory nor injunctive relief was available to the plaintiffs, nor - without a prosecution - could there be suppression of illegally obtained evidence. For those plaintiffs it was damages or nothing. We made clear, however, that the tort remedy is not boundless. Claimants must establish grounds that entitle them to a damages remedy, in addition to proving that their constitutional rights have been violated.

Recognition of a constitutional tort claim here is neither necessary to effectuate the purposes of the State constitutional protections plaintiff invokes, nor appropriate to ensure full realization of her rights. Without question, the cost to society of exclusion of evidence and consequent reversal of plaintiff's conviction notwithstanding proof of guilt beyond a reasonable doubt will serve the public interest of promoting greater care in seeking search warrants. Unlike in Brown, the deterrence objective can be satisfied here by exclusion of the constitutionally challenged evidence.
Ignoring the technical inadmissibility of claimant's submission on the motion and after searching the record the Court concludes that the claimant has failed to establish a triable issue of fact as to the alleged failure to afford him due process of law in either the administrative hearing or with regard to the criminal charges lodged against him in Town Court. It appears that claimant was afforded due process at the superintendent's hearing on the inmate misbehavior report and was found guilty of three of the five charges on his own admission (see, Defendant's Exhibit E). These findings of guilt were affirmed on the claimant's administrative appeal (see, Defendant's Exhibit G); and claimant's subsequent request for reconsideration of the hearing officer's findings was rejected due to insufficient grounds (see, Claimant's Exhibit P). Furthermore, with regard to the criminal charge lodged against him as a result of the same January 2, 2001 incident, the record demonstrates that claimant was indicted by the Oneida County Grand Jury which accused him of two counts of assault in the second degree and one count of promoting prison contraband in the first degree (see, Claimant's Exhibit G). He was thereafter arraigned upon the indictment in Oneida County Court (see, Claimant's Exhibit L) where his case was assigned to the Oneida County Public Defender Criminal Division. The Public Defender apparently negotiated a plea bargain which permitted claimant to enter a guilty plea upon a newly filed criminal complaint containing the reduced charge of assault in the third degree (a misdemeanor) in satisfaction of all charges contained in the aforementioned indictment.

Nor may claimant's sentence on the plea of guilty (90 days confinement to be served concurrent with his then pending state time) be viewed, even under the most liberal of standards, as cruel and unusual punishment. It is well established that mere confinement, even in a segregation cell, does not alone constitute cruel and unusual punishment (Wilkinson v Skinner, 34 NY2d 53). Nor can cruel and unusual punishment be found to have resulted from the Parole Board's determination to postpone a decision on claimant's release for six months based upon the criminal charges contained in the indictment which were then still pending (see, Claimant's Exhibit N) and which were not disposed of until September 13, 2001 (see, Claimant's Exhibit H and Defendant's Exhibit H3). Claimant's cause of action for constitutional tort on either due process or cruel and unusual punishment grounds is, therefore, without merit and, accordingly, is dismissed.

Finally, claimant has not alleged a cognizable cause of action premised upon DOCS alleged failure to take some kind of unspecified action as a result of the injury sustained in the altercation which underlies this claim. At best claimant appears to be asserting a cause of action for negligent investigation, a cause of action which does not currently exist in this State (see Coyne v State of New York, 120 AD2d 769) for reasons of public policy.

The instant claim lacks merit and is, thereby dismissed in its entirety.

December 19, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 22, 2002;
  2. Affirmation of Joel L. Marmelstein dated April 12, 2002 with exhibits;
  3. Unsworn affidavit of Norman Quinn Knight dated October 13, 2002 with exhibits.

Submitted but not considered:

  1. Unsigned affirmation of Joel L. Marmelstein dated October 23, 2002 with exhibits.

[1]Court records demonstrate the defendant's answer to the claim was served and filed on July 13, 2001 and although the matter was ripe for determination pursuant to CPLR 3212 when the motion was made the Court chose to provide additional notice to the pro se claimant of its intention to determine the matter summarily.