New York State Court of Claims

New York State Court of Claims

CLAY v. THE STATE OF NEW YORK, #2007-041-027, Claim No. None, Motion No. M-73452


Application to file late claim denied where proposed claim lacks merit and claimant offers no reasonable excuse for delay.

Case Information

DANIEL CLAY, 99-A-0386
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:
New York State Attorney GeneralBy: Michael T. Krenrich, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 27, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late wrongful confinement claim pursuant to Court of Claims Act § 10 (6). The application is denied.

Claimant is an inmate at Clinton Correctional Facility (Clinton). The proposed claim alleges that claimant was wrongfully confined to keeplock for thirty days, and denied privileges, as a result of a flawed Tier II disciplinary hearing held at Clinton on May 1, 2006. Claimant was charged with creating a disturbance, interfering with an employee and refusing a direct order. The underlying misbehavior report stated that 12-15 inmates were in the vicinity where the incident took place, near the facility law library. In particular, the misbehavior report places claimant inside the law library during the incident while the complaining correction officer and the 12-15 inmates are in the hallway outside the library.

At the hearing, claimant sought to call all of the “15 or 16” inmates as witnesses. The hearing officer responded by stating that he would not take testimony from 16 witnesses but offered to hear from “a couple guys that are on the callout that you can give me some idea where they lock or some way of tracking them down.” Claimant was unable to provide any specific information about the potential witnesses other than to suggest that there was a list of inmates subject to the law library callout on the date of the incident who may have been able to offer relevant testimony. After the hearing was adjourned to ascertain potential witnesses, the hearing officer heard from three inmates of the 22 inmates listed on the library callout. These witnesses provided no pertinent testimony.

The hearing officer declined to permit claimant to “call anymore inmates off that call-out for witnesses. I will however, make note that you [claimant] requested 19 other inmates to be called. And ah, I’m going to deny that request.” The hearing officer stated that calling further inmates from the callout list would be redundant, cause manpower problems within the facility and problems for inmates who would miss their respective program time.

After the hearing, claimant was found guilty of creating a disturbance and refusing a direct order and not guilty of interfering with an employee. Claimant served his ordered penalty of keeplock and loss of privileges for thirty days and then commenced an article 78 proceeding in Supreme Court challenging the disciplinary determination. The disciplinary determination was vacated by a Decision and Judgment of the Honorable S. Peter Feldstein, Acting Supreme Court Justice, dated February 27, 2007. Judge Feldstein also directed that [defendant] “expunge all reference to such hearing, as well as the incident underlying same, from [claimant’s] institutional records” together with reimbursing claimant for any surcharges imposed. Judge Feldstein held that:
“[T]he Hearing Officer erred in concluding that the proposed testimony of further inmates from the Law Library callout sheet would be redundant. While the Court appreciates the Hearing Officer’s concern with respect to the impact on facility staff in escorting multiple potential witnesses to and from the hearing site, as well as the impact associated with removing potential inmate witnesses from their assigned programs to testify, it is clear to the Court that there must have been multiple inmates who had direct knowledge of the interaction between the [claimant] and [the correction officer].”

Claimant made his application to file a late claim, for money damages of $10,000 for wrongful confinement, on May 21, 2007.

Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim “at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.”

A claim for wrongful confinement accrues on “the date on which [claimant’s] confinement terminated” (Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 [2005]). The claim arose on May 31, 2006 when claimant was released from keeplock and the application is timely pursuant CPLR § 215.

In determining the application, Court of Claims Act § 10 (6) provides that:
“[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.”

In reviewing a late claim application, “the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling” (Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, “[n]othing in the statute makes the presence or absence of any one factor determinative” (Bay Terrace Co-op. Section IV, Inc. v New York State Employees’ Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, “it is well settled that the Court of Claims’ broad discretion in this area should be disturbed only in the face of clear abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

Claimant fails to offer a reasonable excuse for the delay in filing the claim. Claimant alleges that he was denied access to the facility law library. The ninety-day time period for filing and serving the claim expired on August 29, 2006 (Court of Claims Act § 10). Claimant was released from keeplock on May 31, 2006 and, by his own admission, was using the facility law library prior to expiration of the time to file and serve his claim:
“I had intended on filing a § 1983 for a Due Process violation, but after reading an August 23, 2006 N.Y. Law Journal article (See Exhibit B) the Federal Court says that inmates cannot claim a Due Process violation if they are confined less than 101 days.”

In addition, claimant was able to commence and successfully prosecute an article 78 proceeding to vacate the disciplinary determination during the period he was supposedly prevented from both using the law library and filing and serving his claim.

The defendant does not dispute that it had timely “notice of the essential facts constituting the claim” and “an opportunity to investigate the circumstances underlying the claim.” The defendant does not allege that it would suffer any prejudice were the late claim application to be granted.

Claimant has already successfully exercised another available remedy: The article 78 proceeding which led to the disciplinary determination being vacated and to expungement of all reference to the hearing, as well as the underlying incident, from claimant’s institutional records, together with reimbursement to claimant for any surcharges imposed.

Section 10 (6) requires that the proposed claim not be “patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists” (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).

The proposed claim lacks merit. To establish that he was falsely imprisoned, claimant must prove “(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff 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], cert denied sub nom Schanbarger v Kellogg, 423 US 929 [1975]).

Claimant does not satisfy element (4) of the Broughton test. Even accepting all of claimant’s allegations as true, the determination ordering keeplock confinement was privileged. Where employees of the Department of Correctional Services, in commencing and conducting formal inmate disciplinary proceedings, “act under the authority of and in full compliance with the governing statutes and regulations . . . their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity” (Arteaga v State of New York, 72 NY2d 212, 214 [1988]). In particular, “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” (Arteaga, 72 NY2d at 219).

The absolute immunity for discretionary quasi-judicial acts relating to inmate discipline applies even where it is later determined that the discretionary decision was mistaken (Varela v State of New York, 283 AD2d 841 [3d Dept 2001]; Davis v State of New York, 262 AD2d 887 [3d Dept 1999]).

In Holloway v State of New York (285 AD2d 765, 766 [3d Dept 2001]), an inmate was subjected to a cell frisk conducted in violation of a regulation (the inmate should have been permitted to observe the frisk unless he presented a danger to the safety and security of the facility) and, after a hearing, was sentenced to 180 days in the Secure Housing Unit (SHU). The disciplinary determination was administratively reversed on the basis of the improperly conducted cell frisk.

The subsequent claim alleging unlawful confinement in SHU was dismissed since “[i]n conducting the frisk and deciding whether to allow claimant to observe it, the correction officers were obligated to make a ‘discretionary decision in furtherance of general policies and purposes where the exercise of reasoned judgment can produce different acceptable results’” (Holloway, 285 AD2d at 766, quoting Arteaga, 72 NY2d at 219). The Holloway court concluded, at p. 766, that:
“Accordingly, while the correction officers who frisked claimant's cell may have abused their discretion by not allowing him to observe the frisk, thereby providing the basis for this Court’s judgment annulling the disciplinary determination, the correction officers conducting the frisk were nevertheless exercising a discretionary authority for which the State has absolute immunity.”

Holloway recognizes that even though the improper cell frisk resulted in a reversal on administrative appeal of an initial guilty finding, both the frisk and the subsequent disciplinary hearing involved discretionary decisions and were entitled to absolute immunity.

Similarly, the hearing officer in claimant’s disciplinary proceeding was exercising quasi-judicial discretionary authority in determining whether to further engage in the witness fishing expedition proposed by claimant. The relevant regulation under Title 7 of the New York Codes, Rules and Regulations provides as follows:
“Section 253.5 Inmate witnesses.

(a) The inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented.”

The regulation clearly requires the hearing officer to exercise discretion in permitting an inmate to call witnesses at a disciplinary proceeding. The Acting Supreme Court Justice in the related article 78 proceeding disagreed with the hearing officer’s decision regarding the production of potential witnesses. That others may subsequently disagree with the discretion exercised by a hearing officer in an inmate disciplinary proceeding, as to whether that discretion was wisely or even properly exercised, does not change the essential discretionary nature of the act.

Claimant did not, and apparently could not, specifically identify anyone who witnessed the incident and simply sought to question everyone in the vicinity of the law library. The hearing officer, in the exercise of his discretion, determined, properly or not, that a further mass search for potential witnesses would be redundant, and, significantly, also determined that calling 19 additional witnesses without any indication that any had relevant information could “jeopardize institutional safety [and] correctional goals” (7 NYCRR 253.5).

Simply put, the State is absolutely immune from liability “when the [challenged] action involves the conscious exercise of discretion of a judicial or quasi-judicial nature” (Arteaga, 72 NY2d at 216; see Carossia v City of New York, 39 AD3d 429, 429 [1st Dept 2007]).

Based upon a balancing of the factors set forth in section 10 (6) and recognizing that “it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion” (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]), the application to file a late claim is denied.

June 27, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion, filed May 25, 2007;
  2. Affidavit of Daniel Clay, sworn May 5, 2007, and annexed exhibits;
  3. Affirmation of Michael T. Krenrich, dated June 19, 2007.