New York State Court of Claims

New York State Court of Claims

HENRIQUEZ v. THE STATE OF NEW YORK, #2003-031-015, Claim No. 106593-A, Motion Nos. M-66149, CM-66240


Claim alleging, inter alia, illegal confinement failed to set forth any rules or regulations concerning Claimant's disciplinary hearings that were allegedly violated. Claimant's remaining allegations fail to adequately set forth any other cause of action. Defendant's cross-motion for dismissal of the claim granted. Claimant's motion for assignment of counsel denied as moot.

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:
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 3, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Claimant for assignment of counsel and cross-motion by Defendant for dismissal of the claim:
1) Claimant's Notice of Motion (M-66149), filed September 6, 2002;
2) Claimant's affidavit, sworn to August 12, 2002, with attached exhibits;
3) Defendant's Notice of Cross-Motion (CM-66240), filed January 6, 2003;
4) Affidavit of Gregory P. Miller, Esq., sworn to January 3, 2003, with attached exhibit;
  1. Claimant's reply affidavit, sworn to January 10, 2003;
6) Order of the Hon. Susan Phillips Read, filed December 2, 2002.

Upon the foregoing papers, Defendant's motion is granted. Claimant's motion is denied as moot. Claimant has moved for the assignment of counsel to represent him in this matter. Defendant has filed a cross-motion, seeking dismissal of the claim. By way of background, Claimant filed what he designated as a motion on September 6, 2002. Upon reviewing the documents submitted by Claimant, it was apparent that, though he had mislabeled this document, Claimant had in fact intended to file a claim and to accompany that filing with a motion for poor person status and for the assignment of counsel. For this reason, on November 13, 2002, I signed a daily report directing the Clerk to treat this document as a claim and to deem it filed as of September 6, 2002. At that time, no inquiry into the adequacy of the content of the claim was conducted. Claimant's motion for poor person status was resolved by the Order of the Hon. Susan Phillips Read, filed on December 2, 2002. Claimant's motion for assignment of counsel remained. That motion and Defendant's cross-motion seeking dismissal of the claim, are addressed by this decision.

In his claim, Mr. Henriquez alleges that he was illegally confined after a disciplinary hearing from March 9 through June 7, 2001, and then again from July 8, 2001 through July 25, 2002. These two periods of confinement were the result of separate Inmate Misbehavior Reports and separate disciplinary hearings. Claimant also alleges that he was improperly transferred from Wende Correctional Facility ("Wende") to Attica Correctional Facility ("Attica") on March 14, 2001. Further, he alleges in conclusory fashion that Defendant has lost some of his personal property and that he was the victim of harassment and more than one assault, and that his constitutional rights were violated. He does not provide the details of any of these matters, though it is apparent that all of these events occurred after his transfer to Attica in March of 2001, and that the loss of Claimant's property occurred between April 19, and July 9, 2001.

In a motion to dismiss a claim, the pertinent provisions of § 3211(a)(7) of the Civil Practice Law and Rules provide that a ". . . party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . the pleading fails to state a cause of action . . ." In such a motion, the movant, here Defendant, is held to have conceded the truth of every fact alleged by the Claimant for purposes of the motion. Determination of the motion, generally, does not rest upon resolution of the ultimate facts, but rather on whether the facts asserted adequately set forth a viable cause of action (see Stukuls v State of New York, 42 NY2d 272, 275; cf. Rovello v Orofino Realty Co., Inc., 40 NY2d 633).

With regard to his alleged illegal confinement, Claimant has failed to identify with regard to either the March 9 through June 7, 2001 period, or the July 8, 2001 through July 25, 2002 period, what rules or regulations were allegedly violated during the hearings that resulted in his confinement. Though Claimant does dispute the validity of the charges against him which were determined at those hearings, he cites no shortcoming in the hearing process itself upon which an action for illegal confinement can be based. Claimant implicitly equates the success of his Article 78 proceeding in Supreme Court with his right to recover in this action. However, the actions of prison personnel involving inmate disciplinary matters are generally quasi-judicial and, unless they exceed the scope of their authority or violate applicable rules, are afforded absolute immunity (Arteaga v State of New York, 72 NY2d 212; Davis v State of New York, 262 AD2d 887, lv denied 93 NY2d 819). The fact that the disposition from a disciplinary hearing is later reversed does not necessarily remove the matter from the blanket of immunity (Arteaga v State of New York, 72 NY2d 212, supra; Bonacorsa v State of New York (Ct Cl), Bell, J., May 31, 1994 [Claim No. 86522]).

Claimant does not set forth the date(s) of the hearing or hearings that resulted in his being confined from July 8, 2001 through July 25, 2002. It can only be assumed, therefore, that those matters were not overturned, either administratively or by way of an Article 78 proceeding. However, even if one or more Article 78 applications had been heard, and had Claimant been successful in each respective proceeding, he would still have to demonstrate that the disciplinary hearings were conducted in violation of the relevant rules before he could recover on this claim for monetary compensation. There is no indication that Defendant violated any of its own rules and regulations in conducting either the hearing on March 19, 2001, or any subsequent hearing, or that it otherwise acted outside the sphere of privileged actions (Arteaga, 72 NY2d 212, supra; Holloway v State of New York, 2001 WL 777553 [3d Dept. 2001]; cf. Gittens v State of New York, 132 Misc 2d 399 [Ct Cl 1986]). Accordingly, Defendant is entitled to immunity relating to each of these hearings and each claim for illegal confinement must be dismissed.

Additionally, at least with regard to his claim for illegal confinement between March 9 and June 7, 2001, Claimant failed to either file a claim or serve upon the Attorney General a notice of intention to file a claim within 90 days of his release on June 7, 2001, the date his claim accrued (see Kilpatrick v State of New York (Ct Cl), Patti, J., December 2001, UID No. 2001-013-031)[1]. Under the Court of Claims Act § 10(3-b), a claim or a notice of intention to file a claim, based upon intentional tort, such as is alleged here, must be filed within ninety days. Claimant filed his notice of intention to file a claim on April 24, 2002, and his claim on September 6, 2002. Neither of these occurred within 90 days of Claimant's release. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in Court of Claims Act §§ 10 and 11 are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). For this reason, in addition to what is set forth above, the portion of the claim relating to the March through June, 2001 confinement must be dismissed.

With regard to Claimant's allegations that he was improperly transferred from Wende to Attica on March 14, 2001, Defendant correctly points out that, pursuant to Corrections Law § 23, the "Commissioner of Correctional Services has virtually 'unbridled authority to transfer inmates from one facility to another within the system' (Matter of Johnson v Ward, 64 AD2d 186, 188)" and that a prisoner "has no statutory, constitutional or precedential right to his prior housing or programming" (Matter of Fridella v Coughlin, 177 AD2d 872, 873-874). That portion of the claim relating to Claimant's improper transfer must, therefore, also be dismissed.

Although his claims of improper transfer and illegal confinement appear to be the primary concerns raised in the claim, Claimant also alleges that he has been the victim of harassment and assault, as well as certain constitutional violations. Claimant has failed to provide factual detail of any kind regarding these assertions, however, and he merely asserts that these events all stem from his improper transfer to Attica and are, therefore, actionable. He has failed to allege the dates, times, places, or events underlying any of these alleged causes of action. Additionally, to the extent that Claimant asserts in his claim that his constitutional rights have been violated since his transfer to Attica, a cause of action under the Federal Constitution is not cognizable in this Court (see Ferrer v State of New York, 172 Misc 2d 1, 5; Gill v State of New York (Ct Cl), Mignano, J., January 10, 2001, UID No. 2001-029-042). For these reasons, his allegations fail to set forth a claim upon which relief can be granted.

Finally, with respect to Claimant's allegation that he has lost property, he again fails to set forth any specifics whatsoever in support of his conclusory allegation. He does attach to his claim, without explanation, two Attica Special Housing Unit Personal Inventory sheets. The first of these is dated April 19, 2001 and the second July 7, 2001. However, while these documents show that some property listed on April 19 is not listed on July 7, 2001, they also show that other property was owned by Claimant in July that he did not own in April. I also note that these documents reflect what Claimant possessed on the dates that he alleges he was placed into the Attica Special Housing Unit. They do not reflect what changes occurred by way of purchases, or trading with other inmates between June 7, 2001, and July 7, 2001, while Claimant was in general population and free to dispose of his property as he saw fit. Therefore, Claimant has failed to allege any viable cause of action regarding his alleged lost property.

Accordingly, for the reasons stated above, it is hereby:

ORDERED, that Defendant's motion for dismissal of the claim is granted and the claim is dismissed in its entirety. Claimant's motion for assignment of counsel is denied as moot. The Clerk is directed to close the file.

April 3, 2003
Rochester, New York

Judge of the Court of Claims

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