New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2004-031-069, Claim No. 107654, Motion No. M-68103


Claimant failed to demonstrate a mistake of fact or law. Claimant's motion to restore claim is denied

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: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 16, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for an order to "restore claim":
  1. Notice of Motion, filed February 27, 2004;
2) Claimant's Affidavit, sworn to February 24, 2004;
  1. Affirmation of Timothy P. Mulvey, Esq., dated March 1, 2004;
4) Decision and Order, filed February 17, 2004. Claimant brings this motion, purportedly pursuant to Court of Claims Act § 19, to restore his claim. That section, however, refers to restoration of a claim for good cause after a default. There has been no default in this matter, rather the claim was dismissed sua sponte after Claimant brought a motion for partial summary judgment. For this reason, it is my understanding that what Claimant really seeks is an order vacating the previous order, pursuant to CPLR § 2221.

In his underlying claim in this matter, which was filed on April 23, 2003, Claimant alleges he was wrongfully confined at Auburn Correctional Facility ("Auburn") from January 14 to January 21, 2003, following his transfer to Auburn from Southport Correctional Facility ("Southport"). Claimant alleges that he was never given an inmate misbehavior report, or a hearing on the matter, but rather, was simply released from keeplock status after what he alleges was eight days.

After reviewing Defendant's submission relating to Claimant's previous motion, it was clear to the Court that Claimant had been released upon expiration of the seventh day, and that his confinement for the seven days in question was privileged, as Defendant had not violated any of the rules or regulations relating to inmate discipline.

A motion pursuant to CPLR § 2221 "is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted)" (Foley v Roche, 68 AD2d 558, 567-568).

With this motion, Claimant argues that the February 17, 2004 decision and order was in error because he did not receive a copy of the misbehavior report while at Southport, that he was not properly confined pending a disciplinary hearing because he was never given the inmate misbehavior report, and that the acts of Defendant in confining him were, therefore, not privileged.

It appears that Claimant believes that because he was never given an inmate misbehavior report, any confinement was improper. This, however, is not the law. 7 NYCRR § 251-5.1 (a) provides that:
Where an inmate is confined pending a disciplinary hearing or superintendent's hearing, the hearing must be commenced as soon as is reasonably practicable following the inmate's initial confinement pending said disciplinary hearing or superintendent's hearing, but, in no event may it be commenced beyond seven days of said confinement without authorization of the commissioner or his designee.
Therefore, confinement of an inmate prior to a disciplinary hearing for up to seven days is expressly permitted by the regulations. Additionally, 7 NYCRR § 253.6(a) requires that "[t]he misbehavior report shall be served on the inmate at least 24 hours before the disciplinary hearing." Read together, the regulations clearly demonstrate that, although an inmate must receive a copy of the inmate misbehavior report at least 24 hours prior to the hearing, receipt of the inmate misbehavior report by the inmate is not a prerequisite to pre-hearing confinement.

For this reason, Defendant's confinement of Claimant for seven days did not violate any of the applicable rules and regulations or exceed its authority. Claimant has failed to show that the Court misconstrued the facts or misapplied the law as it applies to this matter. For this reason, his motion must be denied.

Accordingly, it is hereby:

ORDERED, that Claimant's motion is denied.

June 16, 2004
Rochester, New York

Judge of the Court of Claims