New York State Court of Claims

New York State Court of Claims

McKINLEY v. THE STATE OF NEW YORK, #2007-044-505, Claim No. 109186, Motion No. M-74028


Defendant’s motion for summary judgment denied. Failure to provide disciplinary hearing transcript precluded the Court from determining whether Hearing Officer was involved in the investigation of the incident in violation of 7 NYCRR 254.1, or whether his refusal to call claimant’s witnesses was justified under 7 NYCRR 254.5.

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. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 1, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant filed Claim No. 109186 alleging that he was wrongfully confined in the Special Housing Unit as a result of a disciplinary hearing commenced on December 29, 2003 at Auburn Correctional Facility.[1] Defendant answered and asserted several affirmative defenses. Defendant now moves for summary judgment.[2] Claimant opposes the motion.

Defendant argues that it complied with all Department of Correctional Services (DOCS) directives when conducting claimant’s disciplinary hearing, and the State is therefore entitled to absolute immunity. Conversely, claimant contends that the officer was biased because he was involved in the investigation of the incident,[3] and further alleges that defendant violated 7 NYCRR 254.5.[4]

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 those hearings (Arteaga v State of New York, 72 NY2d 212 [1988]). This immunity is retained even though the disciplinary charges are subsequently reversed during an administrative appeal (id.; Davis v State of New York, 262 AD2d 887 [1999], lv denied 93 NY2d 819 [1999]). However, absolute 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).

On this motion for summary judgment, it is defendant’s burden to establish entitlement to judgment as a matter of law by setting forth evidence that defendant conducted the hearing in accordance with all applicable rules and regulations (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Arteaga v State of New York, supra). If the movant does not meet its burden, the motion must be denied regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Defendant submitted copies of the misbehavior report, the hearing record sheet, the Superintendent's Hearing disposition, the administrative reversal and the request for expungement of this matter from claimant’s record. This evidence shows that claimant was charged with both refusing a direct order and a movement regulation violation. A Tier III disciplinary hearing was held before Hearing Officer Quinn, a Correction Lieutenant, at Auburn. A review of the hearing record sheet reveals that claimant requested eight witnesses, none of whom testified.[5] Hearing Officer Quinn called one witness, a registered nurse, and based upon her testimony, found claimant guilty of both charges and imposed a penalty of 90 days in keeplock. Although claimant had already served his disciplinary sentence, the charges were thereafter reversed on administrative appeal because the “circumstances of case does [sic] not warrant disciplinary action.” References to this matter have been expunged from claimant’s record.[6]

The Court finds that defendant has not met its burden in this motion because the evidence submitted does not establish that “the State did not violate any rule or regulation during [c]laimant’s hearing which would entitle its actions to immunity” (McKinley v State of New York, Ct Cl, Aug. 28, 2001, Lebous, J., Claim No. 103784, Motion No. M-63816 [UID # 2001-019-560]). Although defendant’s evidence establishes that the determination was not annulled due to non-compliance with the rules and regulations governing disciplinary hearings, the evidence also establishes that none of claimant’s requested witnesses were allowed to testify, thereby lending some support to claimant’s allegation that Hearing Officer Quinn violated 7 NYCRR 254.5 (see generally McKinley v State of New York, Ct Cl, July 8, 2003, Minarik, J., Claim No. 107323, Motion No. M-66542 [UID # 2003-031-048]). Moreover, defendant’s failure to provide a copy of the hearing transcript deprives the Court of the opportunity to review the record and determine whether the Hearing Officer's exclusion of the witnesses requested by claimant was justified (see generally McKinley v State of New York, Ct Cl, May 11, 2006, Minarik, J., Claim No. 107323 [UID # 2006-031-514]). Given the potential existence of factual issues, defendant’s motion for summary judgment must be denied.

Further, even if defendant had met its burden, claimant states that Hearing Officer Quinn “was the person who showed up . . . to investigate the problem and talked with claimant [after the incident giving rise to the charges].” Claimant’s statement, if credible, strongly supports an inference that Hearing Officer Quinn may have conducted the hearing in violation of 7 NYCRR 254.1, which specifically provides that “a person who has investigated the incident [shall not be appointed to conduct the proceeding].”

Defendant’s Motion No. M-74028 for summary judgment is denied. Defendant is directed to inform the Court within 20 days of the filing of the Decision and Order regarding the status of claimant’s lost property bag. If claimant's papers have not been made available to him by that time, defendant shall provide claimant with copies of this claim (Claim No. 109186), the verified answer, and any discovery exchanged to date, at no cost to claimant. The Court will thereafter reschedule this inmate pro se claim for trial.

February 1, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed on October 1, 2007; Affirmation of Geoffrey B. Rossi, AAG, dated September 28, 2007, and attached Exhibits A through F.

2) “Notice of Motion” filed on October 12, 2007; Reply “Affirmation” of Sincere McKinley sworn to on October 9, 2007.

Filed papers: Claim filed on April 14, 2004; Verified Answer filed on May 13, 2004.

[1]. Sometime thereafter, claimant was transferred to Elmira Correctional Facility (Claimant’s “Reply Affirmation” sworn to October 9, 2007, ¶ 5).

[2].Trial of this matter had previously been scheduled and adjourned because Department of Correctional
Services personnel had allegedly lost claimant’s legal bag while he was in transit and temporarily housed at Downstate Correctional Facility.
[3]. Claimant also asserts that the officer improperly considered evidence outside of the record, and that there was insufficient evidence to support the disciplinary determination. However, these alleged deficiencies, which might affect whether the determination is supported by substantial evidence, are appropriately raised in a CPLR article 78 proceeding (see generally Matter of Crosby v Goord, 38 AD3d 1110 [2007]; Matter of Alamin v New York State Dept. of Correctional Servs., 253 AD2d 948 [1998]; McKinley v State of New York, Ct Cl, Apr. 4, 2003, Scuccimarra, J., Claim No. 105470 [UID # 2003-030-014]).
[4].Claimant also alleges violations of both 7 NYCRR 254.8 and DOCS Directive 4932. 7 NYCRR 254.8 concerns the administrative appeal procedure. Given that the charges were administratively reversed, that regulation is not relevant to this claim. Neither party has provided the Court with a copy of Directive 4932 nor is it otherwise available for review, and thus the Court cannot determine whether that directive was violated.
[5]. In fact, the sole witness was called by Hearing Officer Quinn.
[6]. Notwithstanding expungement of these records, DOCS does maintain expunged files in a separate location solely for use in subsequent litigation, including such defensive purposes as in this claim (Affirmation of Assistant Attorney General [AAG] Geoffrey B. Rossi, in support of Motion No. M-74028, dated September 28, 2007, n).