New York State Court of Claims

New York State Court of Claims

MC GEE v. THE STATE OF NEW YORK, #2004-031-076, , Motion No. M-67739


Claimant failed to demonstrate the appearance of merit to his proposed claim for illegal confinement. His motion for permission to file a late 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: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 21, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed December 8, 2003;
2. Claimant's Affidavit, sworn to November 26, 2003, with attached exhibit;
3. Affidavit of Wendy E. Morcio, Esq., sworn to February 6, 2004, with attached exhibits;
4. Affidavit of Donald Selsky, sworn to February 5, 2004. This is the motion of Michael McGee for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). The proposed claim alleges that Mr. McGee was illegally confined from December 5, 2002 through April 20, 2003, following a Tier III disciplinary hearing. That hearing was commenced on November 29, 2002, and concluded on December 5, 2002, at Gowanda Correctional Facility. Claimant's disciplinary determination was subsequently reversed and expunged on October 9, 2003.[1]

Claimant alleges that the hearing, which concluded on December 5, 2002, was untimely because it was not concluded within 14 days after his initial confinement. He also alleges that the hearing officer presiding over his disciplinary hearing improperly refused his request for certain witnesses and refused to address proposed questions from Claimant to certain witnesses that were called.

According to Claimant, he commenced an Article 78 proceeding to review the disciplinary determination against him, which was transferred from the Supreme Court to the Appellate Division, Third Department, for disposition. However, after Claimant's 136 days of confinement, but prior to the disposition of his Article 78 proceeding, Defendant administratively reversed and expunged the disciplinary determination. For this reason, the Appellate Division dismissed his Article 78 proceeding as moot.

Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979).

In its opposition to this motion, Defendant disputes only factors 1 (excuse for the delay), 5 (substantial prejudice) and 6 ( merit), conceding, and appropriately so, that factors 2, 3, and 4 weigh in Claimant's favor. With regard to his excuse for the delay, Claimant asserts that he believed that he was required to wait until the disposition of his Article 78 proceeding before he could commence an action in the Court of Claims. This is, of course, not the case and Claimant's mistake of law is not a legally recognizable excuse for Claimant's delay (Perez v State of New York, 293 AD2d 918). This factor, therefore, weighs in favor of Defendant. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing an application pursuant to § 10(6), and does not necessarily preclude the relief sought (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979).

Defendant's position regarding the fifth factor, substantial prejudice, is that Defendant has been substantially prejudiced by the passage of time because the memories of relevant witnesses "may have faded over this extended period of time" (Morcio affidavit, Paragraph 17). I find this argument speculative, as there has been no showing that any key witness is unavailable or unable to recall the events in question. This position is also contradicted by the clear and definite statements presented by Defendant's witness, Donald Selsky, in opposition to this motion. I find that this factor weighs in Claimant's favor.

However, of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant. It would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective, and upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Here, Claimant alleges that because the hearing was conducted in violation of the rules and regulations of the Department of Correctional Services ("DOCS") that his confinement resulting from that hearing was illegal.

Defendant correctly points out that the State enjoys absolute immunity from claims for monetary damages relating to disciplinary hearings when the rules and regulations that govern such hearings are followed (Arteaga v State of New York, 72 NY2d 212). Additionally, 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, supra; Bonacorsa v State of New York, Ct Cl, May 31, 1994 [Claim No. 86522], Bell, J.). However, if Defendant did violate its own rules and regulations in conducting the hearing, or otherwise acted outside the sphere of privileged actions this immunity is lost (Arteaga v State of New York, supra; Holloway v State of New York, 285 AD2d 765; cf. Gittens v State of New York, 132 Misc 2d 399 (Ct Cl 1986)). The question then is whether or not Claimant has set forth facts sufficient to demonstrate the merit of his contention that the hearing was conducted in violation of his due process rights.

Claimant's allegations concerning the timeliness of his hearing fail to meet this burden. Defendant has asserted, and the Claimant does not controvert, that the inmate misbehavior report was served and Claimant's confinement began on November 23, 2002. Defendant has also demonstrated that the hearing was commenced on November 29, 2002, after Claimant was confined for six days, and that an authorization for an extension of time to complete the hearing was requested and granted. In any event, it appears that the authorization was unnecessary as the hearing was completed on December 5, 2002, which would have been on the twelfth day after Claimant's initial confinement.

When an inmate is confined pending his disciplinary hearing, 7 NYCRR § 251-5.1 (a) requires that the disciplinary hearing be commenced within seven days. 7 NYCRR §251-5.1(b) requires that such hearing "must be completed within 14 days following the writing of the misbehavior report unless otherwise authorized by the commissioner or his designee." I find, therefore, that the hearing was both commenced and concluded in a timely manner. As the requirements of 7 NYCRR § 251-5.1 were met, the immunities described in Arteaga protect the hearing process, and the State may not be held liable in damages for the confinement of Claimant during the pendency of his disciplinary hearing.

With regard to Defendant's alleged improper refusal to call witnesses requested by Claimant, Defendant has adequately demonstrated that Claimant intended to call another inmate to testify regarding the validity of the SYVA Drug Test that was administered to Claimant. This other inmate was not a certified tester. The hearing officer, therefore determined that this inmate witness's testimony was not relevant and gave Claimant a written explanation of the reason for denying a witness (Form 2176, Defendant's Exhibit A). Defendant has, therefore, adequately demonstrated that the hearing officer relied upon the Department of Correctional Services' rule regarding witnesses: that only witnesses with material testimony and who do not jeopardize institutional safety or correctional goals need be called (7 NYCRR § 254.5[a]). As Judge Bell stated, "[I]f a hearing officer relies upon one of the grounds set forth in the rule, the officer's decision would be covered by absolute immunity from any claims for monetary compensation" (Moreno v State of New York, Ct Cl, April 5, 2001 [Claim No. 100335], Bell, J., UID # 2001-007-551).

Similarly, while the refusal to permit Claimant to submit questions for a witness may constitute a violation sufficient to support an action in the Court of Claims, with one exception, Claimant has only set forth bald conclusory allegations in this regard. Claimant did allege that he was prevented from asking a question relating to whether or not a medication he was taking could cause a "false positive" test result. Defendant has adequately demonstrated that this question was, in fact put, to the State's witness, Nurse Betty Williams (Selsky Aff. Paragraph 9). With regard to any other proposed questions, Claimant has failed to specify what questions he was prevented from asking and how they were relevant and material to the hearing.

I find that with regard to each of the alleged due process violations, Claimant has failed to demonstrate the merit of his proposed claim.

Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), the Court finds that they weigh in Defendant's favor. Based upon the foregoing it is hereby

ORDERED, that Claimant's motion for permission to file a late claim is denied.

June 21, 2004
Rochester, New York

Judge of the Court of Claims

[1]Neither Claimant nor Defendant indicate how or why Claimant's confinement ended on April 20, 2003, but his disciplinary determination was not reversed and expunged until October 9, 2003. Despite this fact, Claimant's submission clearly indicates that the period of time during which he was illegally confined ended on April 20, 2003.