New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2005-015-039, Claim No. 109527, Motion No. M-70245


Court granted unopposed motion by claimant for summary judgment on fourth cause of action seeking damages for two hour loss of out-of-cell recreation for 30 day period. Court awarded $300.00.

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:
Edwin Lamage, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Frederick H. McGown, IIIAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 1, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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 amount requested.

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., unreported.[1]

Here the claimant alleges that he was deprived of two hours of out-of-cell (gallery recreation) time (see 7 NYCRR § 330.4 [a] [1]), 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 allegations.

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).

September 1, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 21, 2005;
  2. Affidavit of Edwin Lamage sworn to May 21, 2005 with exhibit;
  3. Letter dated July 7, 2005 from Frederick H. McGown, III;
  4. Unsworn reply of Edwin Lamage dated July 1, 2005.

[1].Unreported decisions of the Court of Claims issued on or after March 2000 are available via the internet at