New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2007-015-241, Claim No. 113099, Motion No. M-73701


Inmate's motion for summary judgment on cause of action for wrongful confinement was granted where no hearing was conducted within 7 days of his confinement in SHU as required by the applicable regulation and the claimant was not released until 8 days later.

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:
Shawn Green, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 31, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate in the custody of the Department of Correctional Services, moves for partial summary judgment on his claims for wrongful confinement, bailment and negligence. The Wrongful Confinement Claim

The wrongful confinement claim is based on the allegation that the claimant was confined to the special housing unit (SHU) at Great Meadow Correctional Facility on November 15, 2006 without being accorded due process of law. The claimant alleges in this regard that a hearing was not timely commenced within seven days of his confinement in SHU following the issuance of two misbehavior reports on November 15, 2006 (7 NYCRR 251-5.1 [a]). Claimant states in his affirmation in support of the motion that he was "not release[d] from SHU until December 1, 2006 without due process which resulted in claimant being deprive[d] of liberty, property and privileges unjustly . . . ."

In opposition to this branch of the motion the defendant submitted copies of the two misbehavior reports issued on November 15, 2006 and a Superintendent's hearing disposition sheet indicating that the charges against the claimant were dismissed on December 1, 2006 due to an "untimely hearing", which the disposition sheet indicates did not commence until November 28, 2006. (see defendant's Exhibit C).

In order to establish a prima facie case of wrongful confinement, a claimant must show "(1) the defendant intended to confine him, (2) the . . .[claimant] was conscious of the confinement, (3) the . . .[claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged. . . ." (Broughton v State of New York, 37 NY2d 451, 456 [1975]). Claimant's ability to recover in this case turns on whether or not the confinement was privileged.

It is well-settled that conduct of correction facility employees taken in furtherance of authorized disciplinary measures is quasi-judicial in nature and entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 [1988]). The Court in Arteaga was careful to point out, however, that giving full immunity to the conduct of correction employees will not deprive inmates of their right to recover damages for "unlawful actions of employees taken beyond their authority or in violation of the governing rules and regulations" (id. at 220). Thus, the Arteaga Court made clear that the State is not immune from liability for "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). . ." (id. at 221 ). Consequently, absolute immunity is lost for a violation of a due process safeguard embodied in one of the ministerial rules or regulations governing the conduct of disciplinary hearings. Where the regulation permits the exercise of discretion, however, immunity attaches even though it may be later determined that such discretion was abused (Holloway v State of New York, 285 AD2d 765 [2001]).

Here, the applicable regulation mandates that "[w]here an inmate is confined pending a disciplinary hearing or superintendent's hearing, the hearing must be commenced as soon as is reasonably practicable . . . but, in no event may it be commenced beyond seven days of said confinement without authorization of the commissioner or his designee" (7 NYCRR § 251-5.1 [a]). Adherence to this regulation involves no discretionary exercise of reasoned judgment which could typically produce different acceptable results (cf. Arteaga v State of New York, supra; Tango v Tulevech, 61 NY2d 34, 41 [1983]). Rather, affording the claimant a timely hearing constituted a ministerial act requiring direct adherence to a governing rule or standard with a compulsory result (Himko v State of New York, Ct Cl, June 27, 2007 [Claim No. 109614, UID 2007-045-502] Lopez-Summa, J., unreported.; Gagne v State of New York, Ct Cl, November 14, 2006 [Claim No. 108815, UID # 2006-044-007] Schaewe, J., unreported). Consequently, the cloak of absolute immunity accorded discretionary or quasi-judicial conduct does not shield the defendant from liability for a violation of this due process safeguard. Claimant's motion for partial summary judgment on the issue of liability on his cause of action for wrongful confinement is therefore granted. Damages are limited, however, to the period by which the confinement exceeded that authorized by the applicable regulation (id., Plair v State of New York, Ct Cl, September 28, 2000 [Claim No. 95693, UID 2000-029-023] Mignano, J., unreported). As set forth above, 7 NYCRR 251-5.1 (a) required that the hearing be commenced within seven days of confinement. In calculating that period, the day the misbehavior report is written is excluded (Matter of Agosto v Selsky, 39 AD3d 1106 [2007]). As the claimant was confined on November 15, 2006 and released on December 1, 2006, the period of wrongful confinement is eight days. The extent of damages for this period will be tried together with the remaining claims.

The Bailment Claims

The claimant alleges that his personal property was confiscated following his admission to SHU on November 15, 2006 but not thereafter returned to him. The claimant also alleges that on October 16, 2006 a shower bucket containing his shower gear was confiscated when the claimant was issued a misbehavior report for several rule violations and that the bucket and shower gear were not returned.

The State as a bailee of an inmate's personal property owes a common-law duty to secure the property in its possession (Pollard v State of New York, 173 AD2d 906 [1991]; see also 7 NYCRR part 1700). A rebuttable presumption of negligence arises where it is established that the property was delivered to the defendant with the understanding that it would be returned, and that the defendant failed to return the property or returned it in a damaged condition (Ramirez v City of White Plains, 35 AD3d 698 [2006]; Feuer Hide & Skin Corp. v Kilmer, 81 AD2d 948 [1981]; Weinberg v D-M Rest. Corp., 60 AD2d 550 [1977]; see also Claflin v Meyer, 75 NY 260 [1878]). Thereafter the burden of coming forward with evidence negating fault is upon the defendant (Feuer Hide & Skin Corp., supra; Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049 [1981]; Weinberg v D-M Rest. Corp., supra).

In support of his motion for summary judgment on his bailment claim the claimant submitted a copy of both a Personal Property Transfer form (Form 2064), as proof that personal property was confiscated on November 15, 2006 following his admission to SHU, and a copy of his administrative claim (form 1421) for those items of personal property he alleges were not returned. The claim was denied and affirmed on appeal on December 27, 2006.

In opposition to the motion, the defendant points out that the Personal Property Transfer form reflects that the claimant acknowledged receipt of all of his property on December 1, 2006. While this alone may not be dispositive of the claim (see Alston v State of New York, 9 Misc 3d 1126 [A] [Ct Cl, 2005]) it suffices to defeat claimant's motion for summary judgment.

With regard to the claim for the defendant's alleged confiscation of a bucket containing the claimant's shower gear, the defendant correctly points out that the claimant failed to prove that he owned the bucket and its contents as required to establish a prima facie entitlement to judgment as a matter of law.

The Negligence Claims

The claimant alleges that the defendant failed to provide him with a washcloth and comb upon his admission to SHU as required by 7 NYCRR § 302.2 (b). In opposition to this aspect of the claimant's motion the defendant makes clear that when inmates are admitted to SHU they are provided a pre-assembled bag containing the items required by § 302.2 (b), which typically include a comb, washcloth, sheets, etc. As a result, a question of fact exists regarding whether or not the claimant received a washcloth and comb and, if not, whether he was damaged thereby.

Claimant also seeks summary judgment on his claim that he was not provided with his personal property within 72 hours of admission to SHU. The applicable regulation, 7 NYCRR § 302.2 (e) (2), states that within 72 hours of admission each inmate "will be permitted" certain designated items of personally owned property, including certain religious items, stamps, etc. Claimant has failed to establish that he requested and was denied any of the items of personally owned property set forth in this section.

Lastly, claimant seeks summary judgment on his claim for reimbursement of shipping expenses allegedly incurred when he was required to return a package containing a dictionary and a yoga bible to the sender. Defendant makes clear in opposition to this aspect of the claim that the dictionary and yoga bible were not purchased from approved vendors as required by Directive 4921.

Based on the foregoing, the claimant's motion for partial summary judgment on the issue of liability with respect to the wrongful confinement claim is granted and the motion is, in all other respects, denied.

October 31, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 22, 2007;
  2. "Affirmation" of Shawn Green sworn to June 22, 2007 with exhibits;
  3. Memorandum of law of Shawn Green dated June 22, 2007;
  4. Affirmation of Michael T. Krenrich dated August 8, 2007 with exhibits;
  5. Reply of Shawn Green sworn to August 17, 2007 with exhibits.