New York State Court of Claims

New York State Court of Claims

COOKE v. THE STATE OF NEW YORK, #2006-028-603, Claim No. 112238, Motion No. M-71833


A pro se Claimant’s motion to consolidate his claim with that of another pro se litigant is denied, although a common question of law is presented. DOCS’ decisions to withhold good time, which had the effect of extending the inmates’ conditional release dates (Penal Law 71.40[b]), is lawful (Correction Law § 803) and entitled to immunity.

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:
BY: Carol A. Cocchiola, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 21, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant Thomas Cooke’s motion for an order consolidating his claim, Claim No. 112238, with the claim of Lenard Berrian, Claim No. 111792:

1. Notice of Motion and Supporting Affidavit of Thomas Cooke, pro se, with annexed Exhibits;

2. Affirmation in Opposition of Carol A. Cocchiola, AAG.

Filed papers: Claim; Answer; Claim No. 111792

The following papers were read on Claimant Lenard Berrian’s motion for partial summary judgment in his favor on Claim No. 111792:

1. Notice of Motion and Supporting Affidavit of Lenard Berrian, pro se, with annexed Exhibits;

2. Affidavit in Opposition of Dennis M. Acton, AAG; and

3. Reply of Lenard Berrian, pro se.

Filed papers: Claim; Answer

Both of these claims, in relevant part, challenge certain practices and procedures of the Department of Correctional Services (DOCS) that, the Claimants allege, result in the unlawful withholding of good time credit which, in turn, extended their incarceration beyond the date on which they were entitled to conditional release. Claimant Thomas Cooke, who states that his conditional release date was April 15, 2006, alleges that his good time credit was withheld, and therefore his release delayed, until he completed two treatment programs, programs that he had previously been told he did not have to take. Claimant Lenard Berrian contends that he has remained incarcerated beyond his conditional release date of November 5, 2004. Approximately four months prior to this date, he was found guilty of a urinalysis violation for which he lost 90 days good time allowance, and the balance of his good time – 4 years – was withheld until he completed another substance abuse program. Both Claimants subsequently enrolled in the indicated treatment programs but had not, at the time their claims were filed, successfully completed the courses. In the claims, they challenge the authority of DOCS to withhold good time credit, and therefore delay an inmate’s conditional release, for such a reason.

Motion for Consolidation

“When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay” (CPLR 602[a]). While these two claims do relate, in part, to a common question of law, they arise from different factual situations and each Claimant has alleged additional causes of action that are unique to his case. Furthermore, there is no indication that Claimant Berrian would consent to having his claim joined with that of Claimant Cooke. In any event, the ususal benefit of consolidation or joinder is lost where, as here, the actions are being litigated by two individuals, appearing pro se, for prosecution of the action could not be truly combined or made more efficient. Consequently, Claimant Cooke’s motion is denied.

Motion for Partial Summary Judgment

As indicated, both of these claims involve allegations that certain practices of DOCS have infringed on inmates’ rights to conditional release, a right established by section 70.40(l) (b) of the Penal Law:
A person who is serving one or more than one indeterminate or determinate sentence of imprisonment shall, if he so requests, be conditionally released from the institution in which he is confined when the total good behavior time allowed to him, pursuant to the provisions of the correction law, is equal to the unserved portion of his term, maximum term or aggregate maximum term . . . .
Unlike parole, which is discretionary with the Board of Parole, conditional release is mandatory, and, upon application by the inmate, it must be granted if sufficient “good time” has been accrued.

The granting or withholding of “good time” is governed by section 803 of the Correction Law:
Every person confined in an institution of the department or a facility in the department of mental hygiene serving an indeterminate or determinate sentence of imprisonment, except a person serving a sentence with a maximum term of life imprisonment, may receive time allowance against the term or maximum term of his sentence imposed by the court. Such allowances may be granted for good behavior and efficient and willing performance of duties assigned or progress and achievement in an assigned treatment program, and may be withheld, forfeited or canceled in whole or in part for bad behavior, violation of institutional rules or failure to perform properly in the duties or program assigned.
(Correction Law §803[1][a]). As long as a decision to grant, withhold, forfeit, cancel or restore such allowance is made in accordance with law it is final and non-reviewable (subd [4]).

It is well-settled that a decision to withhold good time credit from an inmate because of his failure to participate in or to complete even a recommended (as opposed to required) program is rational and permitted under the statute (Burke v Goord, 273 AD2d 575 [3d Dept 2000]; see also Edwards v Goord, 26 AD3d 659 [3d Dept 2006]; Benjamin v New York State Dept. of Correctional Services, 19 AD3d 832 [3d Dept 2005]). With respect to a claim for money damages arising from such decision, the Commissioner of Correctional Services may also be entitled to absolute immunity (Graham v State of New York, UID#2001-015-132, Claim No. 102124, Motion No. M-62876 [Ct Cl March 29, 2001], Collins, J., citing Mon v City of NewYork, 78 NY2d 3092[1991][“a determination regarding the amount of good time allowance to be provided an inmate is one which inherently involves the exercise of discretion and judgment”]). Consequently, neither Claimant would be entitled to summary judgment in his favor on this cause of action.

Claimants’ motions are DENIED.

December 21, 2006
Albany, New York

Judge of the Court of Claims