New York State Court of Claims

New York State Court of Claims

CISCO v. THE STATE OF NEW YORK, #2006-015-084, Claim No. 110170, Motion No. M-71044


Proper forum for litigating allegations of retaliatory action of correction officers is article 78 proceeding. Inmate's claim asserting defamation against food service supervisor which failed to allege defaming words in context; failed to state a cause of action; manner of transmission of Captain Rowe's internal memo was not raised in notice of intention and is therefore untimely.

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:
Henry I. Cisco, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Arnold, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 25, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss the claim for failure to state a cause of action and on the ground that the Court lacks jurisdiction is granted. Although not specifically delineated in such a manner the claim, which is 38 pages in length, appears to set forth eight separate causes of action. The first cause of action alleges that on March 31, 2004 Correction Officer (CO) Kennedy, in retaliation for a grievance filed against him, fabricated a misbehavior report which resulted in the loss of claimant's job in the "feed-up" room at Great Meadow Correctional Facility. The second cause of action similarly alleges that on the same day CO Patnode also issued a false misbehavior report against claimant in retaliation for a grievance filed against him by the claimant. It is alleged that the filing of the false report resulted in claimant losing his feed-up job. The third cause of action alleges that on March 31, 2004 Grievance Sergeant Nabozny assisted CO Patnode in fabricating a false misbehavior report against claimant in retaliation for claimant's grievances. The fourth cause of action alleges that on April 3, 2004 Lieutenant DiBiase improperly found claimant guilty of the charges contained in CO Patnode's false misbehavior report.

Claimant's fifth cause of action alleges that on April 5, 2004 Superintendent Greene failed to reverse Lieutenant DiBiase's determination of guilt on the misbehavior report. The sixth cause of action alleges that on April 14, 2004 Deputy Superintendent of Programs David A. Carpenter refused to reverse the disposition of claimant's disciplinary hearing. The seventh cause of action alleges that Captain Rowe failed to enclose a letter to claimant in an envelope thus allowing its contents to be read by others. This cause of action alleges further that claimant's complaints were negligently investigated. The eighth and final cause of action alleges that on April 19, 2004 Food Administrator Pagano libeled the claimant.

Defendant moved to dismiss the claim for lack of jurisdiction and failure to state a cause of action. Claimant opposed this motion by an unsworn document characterized as an affirmation[1].

The State's liability for actions of employees of the Department of Correctional Services (DOCS) in commencing and conducting formal disciplinary proceedings was exhaustively addressed in Arteaga v State of New York, 72 NY2d 212 where the Court of Appeals stated the following at p. 218-219:
Because of the problems of maintaining security and discipline within correctional facilities, the discretion delegated to the employees and officers is necessarily comprehensive and calls for the exercise of judgment under widely varying conditions. What, if any, disciplinary action to take in a given situation is a matter requiring consideration of broad policies and general objectives in the application of the governing rules and regulations to the particular circumstances. Where some correction officers might think it necessary to confine an inmate, others, because they considered the infraction to be less serious or evaluated the inmate's behavior pattern differently, could reasonably conclude otherwise. Similarly, what some Hearing Officers might regard as barely enough proof to warrant a finding of guilt in a Superintendent's hearing, others might reasonably reject as insufficient.

Like the decisions of the Board of Parole in Tarter v State of New York, (supra) and of the probation officer in Tango v Tulevech (supra), the actions of Correction Department employees in preparing and filing misbehavior reports, confining inmates, and making dispositions following Superintendents' hearings entail discretionary decisions in furtherance of general policies and purposes where the exercise of reasoned judgment can produce different acceptable results (see, Tango v Tulevech, supra, at 41). We conclude, then, that actions of correction employees, in circumstances such as those here, are quasi-judicial in nature and deserving of absolute immunity. In carrying out their duties relating to security and discipline in the difficult and sometimes highly stressful prison environment, correction employees, like other officials with quasi-judicial responsibilities, should not be inhibited because their conduct could be the basis of a damage claim (see, Tarter v State of New York, supra, at 518; Butz v Economou, 438 US 478, 514).

The Court of Appeals in Arteaga (supra at 220, 221) went on to observe that a finding of absolute immunity would not "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]". The Arteaga decision also noted an inmate's right to bring an action in Federal Court pursuant to 42 USC § 1983 where the correction officers are alleged to have violated an inmate's constitutional rights.

In this matter although departmental regulations prohibit the institution of prison disciplinary proceedings for the purpose of retaliation or revenge (7 NYCRR 250.2 [f]) the proper forum for litigating such allegations is an article 78 proceeding in Supreme Court (Johnson v Goord, 2006 WL 948108, 2006 NY Slip Op 02673 (N.Y.A.D. 3d Dept. April 13, 2006); Godwin v Goord, 270 AD2d 881; Walker v Goord, 266 AD2d 778; Lashway v Coughlin, 220 AD2d 912). A cause of action for damages in the Court of Claims is precluded since government officials exercising quasi-judicial functions, such as the correction officers and other individual State employees herein, enjoy absolute immunity from tort liability even where it is asserted that their decisions were the result of improper motives (Tarter v State of New York, 68 NY2d 511; Mosher-Simons v County of Allegany, 99 NY2d 214; Topal v State of New York, 263 AD2d 414). As a result, the Court finds that the first through sixth causes of action fail to state a claim against the State of New York and must therefore be dismissed.

It is well established that on a motion pursuant to CPLR 3211 (a) (7) the Court's role is to examine the pleading to determine whether the claimant has a cause of action rather than whether a cause of action has been stated (Quail Ridge Assocs. v Chemical Bank, 162 AD2d 917, 918, lv dismissed 76 NY2d 936). In doing so the Court should construe the pleading liberally, accept the facts alleged as true (Carp v Marcus, 112 AD2d 546) and accord claimant the benefit of all favorable inferences which may be drawn from the pleading (see Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318).

As the Court of Appeals in Guggenheimer v Ginzburg, 43 NY2d 268, 275 observed: "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail (see Foley v D'Agostino, 21 AD2d 60, 64-65; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:24, p 31; 4 Weinstein-Korn-Miller, NY Civ Prac., par 3211:36)."

Even applying these liberal standards the Court concludes the seventh cause of action (see claim pages 30-31) fails to assert a viable cause of action against the State of New York. This cause of action is based upon the alleged transmission of an interdepartmental communication between Captain Rowe and the claimant without the use of an envelope. Claimant characterized the Captain's act as both intentional and depravely indifferent. He alleges that the transmission of the memo without the use of an envelope was intended to subject claimant to potential assaults by other correction officers who read the letter.

Claimant's reliance upon Rules 2.1 and 2.2 of DOCS Employees Manual and upon Public Officers Law § 17 (3) (a) relative to the Captain's failure to use an envelope is misplaced. Rule 2.1 as quoted by claimant addresses "[c]onduct that reflect negative light on the Department." Rule 2.2, as quoted, states "[a]n employee shall not knowingly or willingly violate any Law, or ordinance, or any rule, regulation, or directive of the Department. Any conduct constituting disorderly may be the basis for disciplinary action whether or not prosecution, or a conviction result." Rule 2.2 by its own terms may provide a basis for disciplinary action but does not authorize a cause of action for money damages. Public Officers Law § 17 (3) likewise offers no basis for imposing liability. It states:
3. (a) The state shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim, or shall pay such judgment or settlement; provided, that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment or duties; the duty to indemnify and save harmless or pay prescribed by this subdivision shall not arise where the injury or damage resulted from intentional wrongdoing on the part of the employee.

The last phrase of subsection 3 (a) unambiguously provides that the State has no duty to indemnify or save harmless or to pay for any damages or injury occasioned by the intentional wrongdoing of an employee such as that alleged against Captain Rowe. Section 17 (3) of the Public Officers Law does not establish a cause of action against the State but rather is designed to afford certain State employees a legal defense and indemnification for claims arising out of actions performed in the course of their public duties. Although not implicated in either the claim or the claimant's papers in opposition to the motion, the Court has examined 7 NYCRR Parts 720 and 721 which govern the DOCS inmate correspondence program and has found no rule or regulation which might potentially have been violated by Captain Rowe's act of mailing correspondence to claimant without an envelope.

Under the circumstances alleged the Court finds that the claimant's seventh cause of action fails to state a cognizable cause of action and it is therefore dismissed.

Although claimant's eighth cause of action is characterized as sounding in defamation[2] the claim fails to set forth the particular words complained of as required by CPLR 3016 (a) except for the words "disruptive influence." As to those words, the claim fails to allege where and in what fashion the words "disruptive influence" were published. The Appellate Division, Second Department in Gill v Pathmark Stores, Inc., 237 AD2d 563, 564) held that "[f]ailure to state the particular person or persons to whom the allegedly defamatory comments were made . . . warrants dismissal (see, Ott v Automatic Connector, 193 AD2d 657; Horowitz v Aetna Life Ins., 148 AD2d 584; Monsanto v Electronic Data Sys. Corp., supra [141 AD2d 514]; Buffolino v Long Is. Sav. Bank, 126 AD2d 508)." It is not apparent from the allegations in paragraphs 131-136 of the claim whether the alleged defamatory words were published to the Grievance Department and the Director of Nutritional Services in Albany, New York or whether these references relate solely to claimant's back pay issue. Even if the Court were to give claimant the benefit of the doubt and consequently determine that the alleged defamatory remarks were indeed published to the Grievance Department and to the above identified Director of Nutritional Services the Court finds the words "disruptive influence" non-actionable.

First, the allegedly defamatory words are presented out of context thus depriving the Court of an opportunity to properly evaluate them as defamatory or non-defamatory in their contextual setting (see Dillon v City of New York, 261 AD2d 34, 38). Secondly, it is settled that "[l]oose, figurative or hyperbolic statements, even if deprecating the plaintiff, are not actionable (Gross v New York Times Co., 82 NY2d 146, 152-153; Immuno AG. v Moor-Jankowski, 77 NY2d 235, 244, cert denied 500 US 954)" (Dillon v City of New York, supra). Thirdly, the Food Administrator's remarks appear to the Court to be protected speech "either as an expression of opinion, or in recognition of the principle that '[a]n employer has the right to assess an employee's performance on the job without judicial interference' (Ott v Automatic Connector, Inc., 193 AD2d 657, 658)" (id.). In Williams v Varig Brazilian Airlines, 169 AD2d 434, lv denied 78 NY2d 854 the Appellate Division, First Department dismissed a portion of a complaint for defamation based upon an internal memorandum which stated that plaintiff had a bad attitude and was difficult to work with. Similarly, in Goldberg v Coldwell Banker, Inc., (159 AD2d 684) the Appellate Division, Second Department found that a memorandum expressing dissatisfaction with the manner in which plaintiff conducted business was not libel per se. That decision further held that "statements in the memorandum which included language specifically recommending that the plaintiff not be retained or recommended in further transactions are, at worst, expressions of opinion and are afforded constitutional protection (see, Steinhilber v Alphonse, 68 NY2d 283, Rinaldi v Holt, Rinehart & Winston, 42 NY2d 369, cert denied 434 US 969)" (Goldberg v Coldwell Banker, Inc., supra at 685).

Here Food Administrator Pagano's reference to claimant as a disruptive influence is protected either as an employment assessment or as the administrator's opinion and cannot, therefore, form the basis of a cause of action for defamation against the defendant. Claimant's eighth cause of action is therefore dismissed for failure to state a cause of action.

Defense counsel has correctly pointed out that the eighth cause of action and that portion of the seventh cause of action regarding the manner of transmission of Captain Rowe's internal memorandum were not items raised in claimant's notice of intention to file a claim (defendant's Exhibit C) and are therefore untimely (see Court of Claims Act § 10 [3-b]) and for that reason as well the causes of action must be dismissed. To the extent that claimant seeks to assert a claim for negligent investigation, New York State does not recognize such a cause of action (see Pandolfo v U.A. Cable Sys. of Watertown, 171 AD2d 1013; Russ v State Empls. Fed. Credit Union, 298 AD2d 791; Treacy v State of New York, 131 Misc 2d 849, affd sub nom Arteaga v State of New York, 125 AD2d 916, affd 72 NY2d 212; Carlton v Nassau County Police Dept., 306 AD2d 365) and in that regard the claim also fails to state a cause of action.

For all of the above reasons defendant's motion to dismiss the claim is granted.

April 25, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 13, 2005;
  2. Affirmation of Kathleen M. Arnold dated December 13, 2005 with exhibits;
  3. "Affirmation" of Henry I. Cisco dated December 26, 2005.

[1].Claimant has not identified himself as a person authorized under CPLR 2106 to submit an affirmation in lieu of an affidavit. Accordingly, the submitted document would not be entitled to judicial cognizance (Doumanis v Conzo, 265 AD2d 296). The Court will assume, however, that the defendant waived any objection to this defect by choosing not to address the sufficiency of the allegations contained in the purported affirmation (see Sam v Town of Rotterdam, 248 AD2d 850).
[2].Although claimant also raised an issue of back pay in this cause of action it appears from defense counsel's unrefuted allegations in support of the motion and from exhibit D attached to the moving papers that the back pay issue was resolved in claimant's favor and money credited to his account.