New York State Court of Claims

New York State Court of Claims

VASQUEZ v. THE STATE OF NEW YORK, #2003-019-570, Claim No. 106144, Motion Nos. M-67468, CM-67590


Case Information

PAUL VASQUEZ, #86-A-9437
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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 13, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for an order striking the State's affirmative defenses and for an order of summary judgment thereafter. The State of New York (hereinafter "State") opposes the motion and cross-moves for summary judgment as well.

This claim alleges that claimant's misbehavior charge was inappropriately pursued as a Tier III disciplinary action rather than as a Tier I or Tier II disciplinary action as authorized by 7 NYCRR 270.2. The facts are essentially undisputed. On March 9, 2002, at Elmira Correctional Facility, Correction Officer Cardinale found claimant kneeling over a toilet in a bathroom and asked him to stand. Claimant responded that he was washing up and was again ordered to stand and turn around. Claimant did stand but attempted to hide the left side of his face. Ultimately claimant turned around revealing an approximate 10" cut on his face and was taken to the facility infirmary. As a result of claimant's actions, Officer Cardinale issued a misbehavior report against claimant charging him with violating Rule 118.23 of 7 NYCRR 270.2 entitled "Inmates shall promptly report illness or injury to a facility employee."

The State concedes that this charge was written up and pursued as a Tier III action in violation of 7 NYCRR 270.2 (19) (v) which clearly categorizes Rule 118.23 as a Tier I or II level violation. Nevertheless, on March 21, 2002, claimant's Tier III superintendent's hearing was completed and he was found guilty of violating Rule 118.23. According to the Superintendent Hearing Disposition sheet, claimant received the following penalty:
(1) 45 days keeplock starting March 9, 2002 through April 8, 2002

with 15 days thereof being suspended for 60 days;
(2) 30 days loss of phone privileges from March 21, 2002 through April 20, 2002;
(3) 30 days loss of commissary with 30 days suspended for 60 days; and
(4) counsel and/or reprimand.

(Claimant's Exhibit B).

On May 6, 2002, the Superintendent's Hearing finding and disposition were reviewed and reversed.

This claim was served on the Office of the Attorney General on May 30, 2002 by certified mail, return receipt requested, and was filed in the Office of the Clerk on that same date. The State filed a Verified Answer on June 20, 2002 containing four affirmative defenses.

  1. Claimant's Motion No. M-67468
Claimant moves for an order striking the State's four affirmative defenses. CPLR 3024 (b) states that "[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading." The affirmative defenses at issue here are proper defenses, namely failure to state a cause of action (First); failure to particularize the claim pursuant to Court of Claims Act § 11 (Second); the assertion of defendant's entitlement to immunity (Third); and that defendant acted in good faith and, if liable, claimant is entitled to nominal damages only (Fourth). Affirmative defenses are not dispositive of a claim and are merely assertions of a party, absent prejudice, that will not be stricken. (CPLR 3024; 5 Weinstein-Korn-Miller, NY Civ Prac ¶ 3018.14). None of these affirmative defenses are prejudicial or scandalous in any respect whatsoever. In short, the State properly included these affirmative defenses in its Verified Answer. (CPLR 3018 [b]). As such, claimant's motion for an order striking the State's affirmative defenses and Verified Answer and for summary judgment resulting therefrom is denied.

  1. State's Cross-Motion CM-67590
The State cross-moves for summary judgment alleging that: (1) claimant was already in involuntary protective custody and thus confined to his cell prior to keeplock being imposed; and (2) that the penalty actually served - 30 days keeplock - falls within the guidelines for a Tier II disciplinary hearing, and that in either event the State is entitled to immunity. Claimant contends that the State's mistake in holding a Tier III superintendent's hearing as opposed to a Tier I or Tier II violation or disciplinary hearing concerning his misbehavior charge entitles him to compensatory damages for his time spent in keeplock.[1]

The Court of Appeals has held that the State is immune from liability for the actions of employees of the Department of Correctional Services in commencing and conducting disciplinary proceedings stating, "[w]e hold that where, as here, the employees act under the authority of and in full compliance with the governing statutes and regulations...their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity [citations omitted]." (Arteaga v State of New York, 72 NY2d 212, 214). Thus, absent breach of a statute or regulation, an inmate may not recover for time spent in pre-hearing administrative segregation (Davis v State of New York, 262 AD2d 887), or time spent in a special housing unit prior to an administrative reversal of a determination of guilt. (Minieri v State of New York, 204 AD2d 982). Here, claimant contends that a regulation was breached, in that a violation of Rule 118.23 may not be pursued at the Tier III level, i.e., a superintendent's hearing.

In this court's view, although this hearing may have been deemed a superintendent's hearing and even conducted as such, the penalties imposed were in accord with a Tier II disciplinary proceeding. In a similar case involving the distinctions between Tier II versus Tier III disciplinary proceedings, my colleague, the Hon. Francis T. Collins, has stated as follows:
[m]istakes in a misbehavior report of a harmless nature will be overlooked if the inmate is accorded the process to which he is due (Matter of Nedrick v Stinson, 263 AD2d 651; Matter of Alston v Great Meadow Correctional Facility, 252 AD2d 697).

***The regulations governing the manner in which a tier 2 disciplinary hearing and a tier 3 superintendent's hearing are to be conducted are identical in almost every respect, except the punishment which may be imposed. In a tier 2 disciplinary proceeding the hearing officer may order confinement to a special housing unit or cell and the loss of one or more specified privileges, but only up to a period of thirty days. The same penalties are permitted at a superintendent's hearing but without the thirty day time limitation.

(Rosado v State of New York, Ct Cl, September 20, 2000, Collins, J., Claim No. 101736, Motion Nos. M-62013, M-61966, and M-61894, p 3 [UID No. 2000-015-083]; emphasis added).[2]

Here, a mistake in the inmate misbehavior disciplinary process occurred when this charge was handled as a superintendent's hearing, rather than a violation or disciplinary hearing. Claimant was sentenced to keeplock for 45 days, but 15 of those days were suspended, thereby equating to a Tier II penalty of only 30 days.[3] (Claimant's Exhibit B; Claimant's Reply Affirmation, ¶ ¶ 12 & 13). As such, claimant's actual period of confinement fell within the penalty guidelines as if it were imposed in connection with a Tier II hearing. The mistake in labeling this hearing a Tier III hearing rather than a Tier I or II hearing is considered by this court to be harmless. (Rosado, p 3). Under these circumstances, claimant did not suffer an unjust confinement as the result of a breach of a regulation on the part of employees of the Department of Correctional Services and their activities are absolutely immune. (Arteaga, 72 NY2d 212). Further, as noted above, the imposition of a penalty based upon a disciplinary finding that is ultimately dismissed is subject to immunity. (Minieri, 204 AD2d 982 [confinement prior to reversal of a disciplinary determination is not compensable]; see also, Perez v State of New York, Ct Cl, February 14, 2001, Sise, J., Claim No. 99839 [UID No. 2001-028-0005]).

Consequently, for the reasons stated above, it is ORDERED that claimant's motion, Motion No. M-67468 is DENIED; the State's cross-motion, Motion No. CM-67590, is GRANTED; and Claim No. 106144 is DISMISSED.

November 13, 2003
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with these motions:
  1. Claim, filed May 30, 2002.
  2. Verified Answer, filed June 20, 2002.
  3. Notice of Motion No. M-67468, dated September 23, 2003, and filed September 30, 2003.
  4. Affidavit of Paul Vasquez, in support of motion, sworn to September 23, 2003, with attached exhibits.
  5. Notice of Cross-Motion No. CM-67590, dated October 27, 2003, and filed October 30, 2003.
  6. Affirmation of Joseph F. Romani, AAG, in support of cross-motion, and in opposition to motion, dated October 27, 2003, with attached exhibits.
  7. Affidavit of Stephen Wenderlich, in support of cross-motion, sworn to October 23, 2003, with attached exhibits.
  8. Affidavit of Donald Selsky, in support of cross-motion, sworn to October 23, 2003, with attached exhibit.
  9. Memorandum of Law, in support of cross-motion and in opposition to motion, dated October 27, 2003.
  10. Affirmation of Paul Vasquez, in opposition to cross-motion, undated, and filed November 5, 2003.

[1]By way of background, there are 3 tiers of disciplinary hearings as follows: (1) Tier I, violation hearing pursuant to 7 NYCRR Part 252; (2) Tier II, disciplinary hearing pursuant to 7 NYCRR Part 253; and (3) Tier III, superintendent's hearing pursuant to 7 NYCRR Part 254. (7 NYCRR 270.3).
[2]Unreported decisions from the Court of Claims are available via the Internet at
[3]For purposes of discussion the court accepts claimant's calculations that he served keeplock between March 9, 2002 through April 8, 2002 and need not address the State's argument regarding claimant's pre-existing involuntary protective status. (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047 [the court must accept claimant's evidence as true and grant him every favorable inference]).