New York State Court of Claims

New York State Court of Claims

FISCHL v. THE STATE OF NEW YORK, #2006-013-014, Claim No. 111219, Motion Nos. M-71050, M-71051


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):
M-71050, M-71051
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


On January 18, 2006, the following papers were read on motion by Claimant for appointment of counsel, and on motion by Defendant for dismissal of the claim:

Claimant’s Affidavit (M-71050)

Defendant’s Notice of Motion (M-71051), Affidavit and Exhibit Annexed

Claimant’s Affidavit in Opposition to Motion No.


Defendant’s Reply Affidavit in M-71051

Claimant’s Sur Reply Affidavit in M-71051

Filed Papers: Claim

Upon the foregoing papers, Claimant’s motion for assignment of counsel is denied, and Defendant’s motion for dismissal of the claim is granted.

There are two motions before me. The first is the Claimant’s motion (M-71050) for the appointment of counsel, relief sought in his motion for poor person status and in addition to his application for a reduction of the filling fee (CPLR 1101[f]). The second is the Defendant’s motion to dismiss (M-71051).

First, I address the Claimant's application for the appointment of counsel. He has already had imposed a reduced filing fee herein pursuant to CPLR 1101(f) by Presiding Judge Richard E. Sise on August 17, 2005. To the extent that his motion for a fee reduction also sought the assignment of counsel to represent the Claimant, such relief is discretionary (Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273). For litigants in private litigation, absent statutory provision therefor, as in the instant claim which seeks damages, inter alia, for an alleged wrongful confinement, there is no power in the courts to direct the provision of counsel or to require the compensation of retained counsel out of public funds (Matter of Smiley, 36 NY2d 433, supra). Accordingly, to the extent that the assignment of counsel is sought in this motion, it is denied.

The Defendant’s motion to dismiss the claim must be granted. The claim herein was filed on August 2, 2005, sounding in alleged wrongful confinement for the period from May 23, 2003 to January 8, 2004, starting at the Wende Correctional Facility and ending at the Attica Correctional Facility. Underlying the claim is an incident of October 6, 2002 in which Claimant alleges that he was “the victim of an assault and battery at the hands of several corrections officers.” He was issued a misbehavior report and then subjected to a Tier III Superintendent’s Hearing which concluded on November 1, 2002, after which he was sentenced to one year in the Special Housing Unit (SHU) along with the one-year loss of all other privileges and of good time.

Thereafter, after Claimant purportedly reviewed what he characterizes as the three inaudible hearing tapes of his hearing, he submitted a Tier III appeal to the Director of Special Housing in Albany. He contends that it took several attempts for the appeal to be properly forwarded, but eventually it was heard and the findings affirmed on September 18, 2003. Thereafter, Claimant submitted a request for reconsideration, and on January 8, 2004, the Director of Special Housing in Albany reversed the November 1, 2002 Tier III Superintendent’s Hearing proceeding. Claimant asserts that he was released from SHU on the next day, January 9, 2004, after serving 230 days of what he characterizes as wrongful confinement. The record of the November 1, 2002 Tier III Superintendent’s Hearing was thus expunged.

Claimant notes that the chronology might appear erroneous, but his confinement of 230 days did not start immediately after the incident of October 6, 2002 because he was still serving some prior confinement time, and thus the time allegedly served here commenced on May 23, 2003. Regardless, the claim seeks damages for the 230 days of alleged wrongful confinement, at $100.00 per day.

The Defendant seeks dismissal of the claim, noting that the Superintendent’s Hearing was reversed because “[t]he tape is incomplete” (Exhibit A to the moving papers). Defendant relies upon the holding in Arteaga v State of New York (72 NY2d 212), and more particularly Odom v State of New York ( Ct Cl, UID #2000-010-036 [Claim No. 92116] July 26, 2000, Ruderman, J.).[1] In Odom, Judge Ruderman reviewed a very similar circumstance where a tape was inaudible and therefore unreviewable, and after the Supreme Court in essence ordered the annulment and expungement of the underlying disciplinary proceedings, and she noted that the quasi-judicial acts of correction employees taken in furtherance of authorized disciplinary measures are entitled to the immunities articulated in Arteaga v State of New York (72 NY2d 212, supra).

More to the point, she observed that “[m]erely because the determination at the hearing was overturned and, even if, the charges were ultimately dismissed, this does not give rise to a cognizable cause of action because there was no evidence that defendant acted inconsistently with its own rules and regulations [citations omitted]).”

And that is what governs my determination here. It appears that Claimant’s due process rights were observed and that the administrative review to which he was entitled provided him relief from the disciplinary record, and an expungement from his records of the discipline in question. Of course that does not recompense him for the 230 days he purportedly spent in SHU, but there must be showing of some deprivation of a due process or other actionable right.

So that it is clear, I do not and have not interpreted Arteaga, as providing absolute immunity, and neither did the Court of Appeals:

There is no basis for the contention that giving full immunity to the conduct of correction employees in taking authorized disciplinary measures will deprive inmates of all rights to recover damages against the State in the Court of Claims (Correction Law §24[2]) for unlawful actions of employees taken beyond their authority or in violation of the governing rules and regulations [citations omitted]. Thus, actions of correction personnel in physically abusing inmates (see, Correction Law §137[5]) or in confining them without granting a hearing or other required due process safeguard (see, 7 NYCRR 251-5.1; parts 252-254) would not receive immunity.

(Arteaga v State of New York, 72 NY2d 212, 220-221, supra.)

The underlying allegations that Claimant was allegedly assaulted by correction officers is not before me and was not raised or alleged in the claim. The only cause of action here is for alleged wrongful excessive confinement, and for the imposition of that penalty, regardless of its later reversal, there is no allegation of a violation of due process right. The Defendant’s motion is granted and the claim is dismissed.

April 27, 2006
Rochester, New York

Judge of the Court of Claims

  1. Decisions and selected orders of the New York State Court of Claims are available on the Internet at