New York State Court of Claims

New York State Court of Claims

HIMKO v. THE STATE OF NEW YORK, #2007-045-502, Claim No. 109614


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:
Andrew Himko, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 27, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


At the conclusion of the trial, defendant moved to dismiss the claim as untimely pursuant to Court of Claims Act § 10(3-b) and CPLR 215(3). However, defendant failed to raise the timeliness issue in its Verified Answer as required by Court of Claims Act § 11(c) and CPLR 3211(e). Consequently, defendant has waived that defense in this matter.
Nevertheless, the Court also finds that given the facts of this case the longer two-year filing requirement contained in Court of Claims Act § 10(3) applies. There is no dispute that claimant was placed in keeplock on June 19, 2003 and remained there until his release on June 27, 2003. A notice of intention to file a claim was served on September 5, 2003 and the claim was filed on July 16, 2004.
A claim for wrongful confinement that results from a violation of the Department of Correctional Services rules and regulations is subject to the longer two-year filing requirement if the violation is due to ministerial neglect (Gittens v State of New York, 132 Misc 2d 399 [Ct Cl
Andrew Himko, a pro se claimant, filed a claim on July 16, 2004 which alleged that defendant, the State of New York, through its agents, wrongfully confined him in keeplock for a period of nine days without providing him an inmate misbehavior report or a disciplinary hearing. On May 16, 2007, a trial was held at the Elmira Correctional Facility concerning this matter. 1986]; Ramirez v State of New York, 171 Misc 2d 677 [Ct Cl 1997]). The limitation period applicable to the claim is based upon whether claimant’s wrongful confinement is the result of ministerial negligence or intentional conduct. In this case, the alleged wrongful confinement is based upon ministerial neglect, to wit, the failure to hold a disciplinary hearing. Therefore the cause of action is subject to the two-year limitations period set forth in § 10(3) of the Court of Claims Act (see Adams v State of New York, Ct Cl, Oct. 24, 2006, Schaewe, J., Motion No. M-72127, [UID # 2006-044-509]; Cancel v State of New York, Ct Cl, Dec. 18, 2004, Hard J., Claim No. 106521, Motion No. M-65864, [UID # 2002-032-019]). Accordingly, the claim was timely filed.
Therefore, for the reasons stated herein, defendant’s motion to dismiss for untimeliness is denied.
Claimant testified that on June 19, 2003 he was working in mess hall two as a “mess hall worker.”
He stated that his duties included, among other things, working behind the counter, serving food to inmates and dishwashing. He explained that on June 19, 2003 he was instructed by his supervisor, Correction Officer Barsch, to transport a cart of trays to mess hall four because the trays belonged there. After claimant took the trays to mess hall four, he returned to mess hall two. Claimant then testified that Correction Officer Curtis Brown, who was working in mess hall four, became angry and started yelling at him. Claimant did not provide the substance of the exchange but testified that at the end of the exchange, Correction Officer Brown asked him for his identification and when he finished his program he was placed in keeplock for nine days. Claimant has been an inmate at the Elmira Correctional Facility for twelve years. It is his understanding that an inmate receives a “ticket” when he is disciplined by the staff which outlines the charges against the inmate. The inmate then receives a hearing concerning those charges.
Correction Officer Brown credibly testified that claimant threatened him and refused his direct orders to return the trays to mess hall two. Correction Officer Brown thereafter wrote an inmate misbehavior report concerning the incident which he submitted to his supervising officer. However, for reasons unbeknown to Correction Officer Brown, his supervising officer returned it to him to rewrite. Correction Officer Brown testified that he rewrote the inmate misbehavior report a second time and it was again returned to him by his supervising officer to rewrite a third time. Defendant submitted the first and second inmate misbehavior reports (Exhibits C and D) but failed to submit the third and final inmate misbehavior report at trial. Correction Officer Brown testified that the appropriate procedure in this matter would be that a misbehavior report is filled out by the reporting officer, the supervising officer would approve it, then a lieutenant would review it and send it to the tier officer who would then give the misbehavior report to the inmate.
Claimant credibly testified that after the incident in question he was never served with an inmate misbehavior report or “ticket.” Claimant also provided uncontroverted testimony that he was held in keeplock for nine days, from June 19, 2003 through June 27, 2003 without ever being granted an inmate disciplinary hearing.
Department of Correctional Services Regulation, 7 NYCRR § 251-5.1 (a) provides:
“Where an inmate is confined pending a disciplinary hearing or superintendent’s hearing, the hearing must be commenced as soon as is reasonably practicable following the inmate’s initial confinement pending said disciplinary hearing or superintendent’s hearing, but, in no event may it be commenced beyond seven days of said confinement without authorization of the commissioner or his designee.
Defendant failed to present any evidence to establish that an extension of time in which to hold a hearing, as authorized by the rules, was granted.
A cause of action for wrongful confinement requires a claimant to show that the defendant intended to confine him, the claimant was conscious of the confinement, the claimant did not consent to the confinement and lastly the confinement was not otherwise privileged Broughton v State of New York, 37 NY2d 451, 456 (1975). The Court of Appeals has held that the actions of Correction Officers in commencing and conducting disciplinary proceedings, that are “under the authority of and in full compliance with the governing statutes and regulations (Correction Law §§ 112,137; 7 NYCRR parts 250-254) ... 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]). The Court explains that this immunity can be lost “for [the] unlawful actions of employees taken beyond their authority or in violation of the governing rules and regulations” (Arteaga, supra at 220). An example of such actions is confinement without granting a hearing or other required due process safeguards (id. at 221).
Here, the court finds that defendant lost its immunity by confining claimant without the granting of a disciplinary hearing, as this action was in violation of specific rules and regulations rather than a discretionary decision that is entitled to immunity (see Gagne v State of New York, Ct Cl, Nov. 14, 2006, Schaewe, J., Claim No.108815 [UID # 2006-044-007]; Plair v State of New York, Ct Cl, Sept. 28, 2000, Mignano, J., Claim No. 95693 [UID # 2000-029-023]).
Consequently, the Court finds the defendant liable, however, claimant’s damages are limited to the two-day period by which the confinement exceeded that authorized by the applicable rules and regulations. Claimant’s initial seven days of confinement were the result of discretionary actions by defendant which are prosecutorial or quasi-judicial in nature and therefore entitled to absolute immunity.
Accordingly, claimant is awarded the sum of $10.00 per day for two days of wrongful confinement. Claimant is also entitled to lost wages in the amount of $1.76 per day for the two-day period of wrongful confinement. Thus the total award granted is $23.52.
Any and all motions not herein decided, are hereby denied.
To the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).
The Clerk of the Court is directed to enter judgment accordingly.

June 27, 2007
Hauppauge, New York

Judge of the Court of Claims

[1].All quotes taken from trial notes.