New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2008-010-038, Claim No. 109044


After a superintendent’s hearing, claimant was sentenced to SHU. After it was determined that the tape of the hearing was inaudible, charges against claimant were dropped. Claimant was not released from SHU until 13 days later. The Court found the additional confinement excessive.

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):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 6, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for an alleged unlawful confinement of 140 days from September 27, 2003 to February 13, 2004, after he was found guilty at a disciplinary hearing conducted during his incarceration in the New York State Correctional System. This claim was heard in a unified trial.

On September 27, 2003, while at Sing Sing Correctional Facility (Sing Sing), claimant was charged with violations of Rules 180.10 (Frisk Procedures), 113.23 (Contraband), 114.10 (Smuggling) relating to his alleged possession of marijuana (Exs. 4-6). As a result, claimant was placed in the special housing unit (SHU). On October 10, 2003, pursuant to Sing Sing Rules and Regulations, a superintendent’s hearing was conducted at which claimant was found guilty of Drug Possession and Smuggling. Claimant was sentenced to 180 days in SHU and a loss of phone, packages and commissary privileges for 180 days. Claimant contends that he realized at the hearing that the tape recording of the proceeding was inaudible.

On December 11, 2003, the determination of the October 10, 2003 hearing was affirmed. Claimant wrote several letters to various New York State Department of Correctional Services (DOCS) officials requesting reconsideration of the disciplinary determination and complaining that the tapes were inaudible.

On Friday, January 30, 2004, the superintendent’s hearing was administratively reversed because a “portion of the hearing tape is inaudible and unavailable for review” (Ex. 2). At that time, claimant was incarcerated in SHU at Southport Correctional Facility (Southport) and could not be transferred out of SHU and into general population housing because Southport only had SHU’s. Therefore, claimant needed to be transferred to another facility which could provide claimant with general population housing. On February 5, 2004, a decision was made to relocate claimant to Auburn Correctional Facility (Ex. A) and on February 13, 2004 he was transferred to general population at Auburn. Claimant’s record was expunged and claimant was paroled after having been incarcerated for 24 years. According to claimant, without this expungement, he would not have been released.

Lieutenant Varuthese George, who has been employed at Sing Sing for 33 years, testified that he is the lieutenant responsible for discipline at the facility. He stated that claimant was not released from SHU on Friday, January 30, 2004 because general population cells did not exist at Southport. George further explained that inmates are not transported between facilities on weekends and that the transfer referral was generated by Southport on Monday, February 2, 2004. The request was then approved on February 5, 2004 and then likely received by Southport the next day, Friday, February 6, 2004. Southport then had to wait for an available bed in a facility with general population housing. George opined that this was done in a timely manner and in accordance with DOCS procedures. He characterized the delay from February 2, 2004 to February 13, 2004 as the normal wait time due to space restrictions.
The quasi-judicial acts of correctional employees made in furtherance of authorized disciplinary measures are entitled to absolute immunity (see Arteaga v State of New York, 72 NY2d 212). The mere fact that the charges were ultimately dismissed does not give rise to a cognizable cause of action absent proof that defendant acted inconsistently with its own rules and regulations (see Arteaga v State of New York, 72 NY2d 212, supra; Gittens v State of New York, 132 Misc 2d 399,406). Here, the superintendent’s hearing was administratively reversed because a portion of the hearing tape was inaudible and unavailable for review (Ex. 2). Thus, claimant’s disciplinary hearing was not conducted in accordance with defendant’s own regulation requiring that the “entire hearing must be electronically recorded (7NYCRR § 254.6 [a][2]; see Diaz v State of New York, Ct Cl, June 20, 2006, Schweitzer, J., Claim No. 104019; UID 2006-036-008). While defendant’s failure to follow its own rules and regulations removes the cloak of absolute immunity, it does not establish claimant’s entitlement to absolute liability (see Kilpatrick v State of New York, Ct Cl, Dec. 21, 2001, Patti, J., Claim No. 100462, Motion No. M-64030, UID 2001-013-031; Moreno v State of New York, Ct Cl, April 5, 2001, Bell, J., Claim No. 100335, UID 2001-007-551). Rather, claimant must further establish the merits of his claim (id.). Here, the Court finds that claimant has failed to establish that his initial confinement was wrongful (see Jones v State of New York, Ct Cl, Dec. 12, 2005, Lebous, J., Claim No. 101435, UID 2005-019-040). Significantly, claimant does not dispute the manner in which the hearing was conducted with regard to the presentation of evidence nor does he dispute the underlying findings of the hearing officer. Moreover, claimant acknowledges that without this expungement, he would not have been paroled after his 24 years of incarceration.

However, once the disciplinary hearing was overturned, on January 30, 2004, and claimant was neither released from SHU nor were any attempts made to restore him to general population privileges prior to his transfer on February 13, 2004, the Court finds that the confinement was excessive. The State’s release of an inmate from disciplinary confinement in SHU is a ministerial duty, as opposed to a quasi-judicial act, the negligent performance of which can result in the State being cast in damages (see Kagan v State of New York, 221 AD2d 7; Minieri v State of New York, 204 AD2d 982). Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that there was insufficient credible evidence to establish that the delay in releasing claimant from SHU and returning his general population privileges was reasonable. Thus, claimant is entitled to an award of $10.00 per day for 13 days excessive confinement for a total award of $130.00 (see Minieri v State of New York, 204 AD2d 982, supra). It is further ordered that, to the extent that claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act §11-a(2).


October 6, 2008
White Plains, New York

Judge of the Court of Claims