New York State Court of Claims

New York State Court of Claims

ENCARNACION v. THE STATE OF NEW YORK, #2006-044-520, Claim No. 110802, Motion No. M-72336


Claimant’s motion for summary judgment is denied. Notwithstanding annulment of disciplinary hearing, claimant failed to meet his burden of showing that DOCS’ actions against him were in violation of its rules and regulations.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 12, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for partial summary judgment on his second cause of action. Defendant State of New York (“defendant”) opposes the motion. In his claim, claimant seeks damages for many perceived wrongs which resulted from disciplinary action taken against him on February 4, 2003. Claimant was charged with several violations of disciplinary rules: 1) disobeying a direct order, 2) interference, 3) lying, 4) stealing, and 5) possession of stolen property. Claimant was found guilty and sentenced to three days of a restricted diet and required to make restitution in the amount of $100. Claimant commenced a CPLR article 78 proceeding, and the Appellate Division, Third Department granted the petition to the extent of annulling the charges of making a false statement, stealing state property and possessing stolen property. Because claimant had already served his three-day restricted diet, remittal was necessary only for defendant to refund the restitution of $100.

Claimant asserts that he has not received the funds and in addition, seeks $175 for the value of the two books which were confiscated, $250 for each of the nine meals that he did not receive while on the restricted diet and $5,000 for each of the five yellow envelopes containing legal papers that were removed from his cell. Claimant filed an inmate grievance which was denied, and a lost property claim which was allegedly still pending as of April 25, 2005. Although claimant’s Notice of Motion states that he is seeking partial summary judgment on the second cause of action, it appears from the contents of his Affidavit in Support of Motion that he actually seeks judgment on his entire claim in the amount of $27,575.

Claimant, as the proponent of this summary judgment motion, must set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra).

In support of his motion, claimant includes an unsworn “affidavit” of his cellblock “neighbor,” inmate Sammy Feliciano, which states that Feliciano heard papers being moved and that Correction Officers Murphy and Deming left claimant’s cell with a few yellow envelopes. Claimant avers that when he returned from his disciplinary hearing on February 4, 2003, he discovered that five yellow envelopes containing his legal papers were missing. In addition, claimant has provided a copy of a memorandum from Correction Counselor Livermore which stated that the $100 restitution was never charged to claimant’s inmate account and, thus, it would not be reimbursed. Livermore also stated that defendant was not required to return the two books to claimant.

To the extent that this may be a claim for lost property under Court of Claims Act § 10 (9), claimant has not established his ownership of the two books and is not entitled to summary judgment (see generally Claflin v Meyer, 75 NY 260 [1878]; Pollard v State of New York, 173 AD2d 906 [1991]).[1] Claimant has also failed to meet his burden with respect to his claim of wrongful deprivation of meals. It is well-settled that defendant is entitled to absolute immunity from claims for monetary damages relating to disciplinary hearings so long as it complies with the rules and regulations that govern such hearings (Arteaga v State of New York, 72 NY2d 212 [1988]; Sims v State of New York, Ct Cl, Sept. 7, 2005, Lebous, J., Claim No. 101974 [UID # 2005-019-019]). Notwithstanding reversal of the disciplinary charges, the immunity is retained as long as the disciplinary proceedings were conducted consistent with the procedures provided in the relevant rules of the Department of Correctional Services (Arteaga v State of New York, supra; Davis v State of New York, 262 AD2d 887 [1999], lv denied 93 NY2d 819 [1999]). However, immunity may be lost if defendant violated its own rules and regulations in conducting the hearing, or otherwise acted outside the sphere of privileged actions (Arteaga v State of New York, supra). Claimant has failed to establish that prison personnel violated any of the applicable regulations or acted outside of their authority, and thus is not entitled to summary judgment.[2]

Claimant’s Motion No. M-72236 for “partial” summary judgment is hereby denied.

December 12, 2006
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion for “partial” summary judgment:

(1) Notice of Motion filed September 28, 2006; Affidavit of Bernabe Encarnacion sworn to September 22, 2006 with annexed exhibits.

(2) Affirmation in Opposition of Joseph F. Romani, AAG filed October 10, 2006.

Filed papers: Claim filed April 25, 2005; Verified Answer filed May 27, 2005.

[1]. To the extent that claimant is challenging the removal of the books based upon a facility policy or directive, this Court does not have jurisdiction over such a cause of action. Claimant’s remedy was to follow the inmate grievance procedure (which was denied) and thereafter, seek judicial review in Supreme Court pursuant to CPLR article 78.
[2]. Although some of the disciplinary charges were annulled, the charges for failing to obey a direct order and interference were confirmed (see Matter of Encarnacion v Goord, 8 AD3d 843 [2004], lv denied 3 NY3d 607 [2004]).