Claimant's motion seeking summary judgment with regard to the fourth cause of
action stated in the amended claim filed as of right on August 13, 2004 is
granted. Paragraphs 33 - 41 of the amended claim allege that at a Tier II
hearing Lt. R. Juckett imposed upon the claimant a penalty which included (i) 30
days keeplock and 30 days loss of commissary, package and phone privileges from
May 10, 2004 through June 9, 2004 and (ii) loss of recreation privileges from
June 9, 2004 through July 8, 2004. The motion contends that claimant is
entitled to judgment on his fourth cause of action asserting the additional
30-day loss of recreation was excessive.
By letter dated July 7, 2005 Assistant Attorney General Frederick H. McGown,
III advised the Court that "[d]efendant does not oppose the motion for summary
judgment on the issue of excessive confinement for 2 hours per day for 30 days".
Defense counsel argued, however, that the damages requested in the amount of
$750.00 are excessive.
Claimant submitted an unsworn reply in which he argues that since the defendant
did not raise the issue of the alleged excessiveness of damages in its answer
the State should be deemed by the Court to have waived its objection to the
In the Court of Claims the amount of damages to be awarded rests in the Court's
discretion based upon the evidence submitted. Where the defendant's liability
has been conceded or established and neither party presents evidence tending to
support its claim for or against the specific damages requested it is incumbent
upon the Court to determine the appropriate amount of damages.
The Court is aware of two similar cases in which the claimant was awarded
damages in the amount of $5.00 per day for the loss of one hour of out-of-cell
recreation (see Sealey v State of New York
, Ct Cl, October 4, 2001
[Claim No. 97855, UID #2001-030-512], Scuccimarra, J., unreported and Graham
v State of New York
, Ct Cl, October 29, 1999 [Claim No. 91653], Patti, J.,
Here the claimant alleges that he was deprived of two hours of out-of-cell
(gallery recreation) time (see 7 NYCRR § 330.4 [a] ), to which he
would otherwise have been entitled but for the excessive sentence imposed as a
result of a Tier II disciplinary hearing. The defendant did not refute these
A review of 7 NYCRR § 253.7 reveals that penalties imposed as a result of
a Tier II disciplinary hearing are, in fact, limited to a period of 30 days.
Accordingly, the Court awards damages in the amount of $10.00 per day for the
loss of two hours of out-of-cell recreation time for the period June 9, 2004 to
July 8, 2004 in the total amount of $300.00.
Pursuant to CPLR 3212 (e) (2) the Court directs that entry of judgment on
claimant's fourth cause of action be held in abeyance pending the determination
of the remaining causes of action set forth in the claim and in the
"amend-supplement claim" (sic).