New York State Court of Claims

New York State Court of Claims

CALLENDER v. STATE OF NEW YORK, #2008-045-022, Claim No. 114093, Motion No. M-74661


defendant’s summary judgment motion based on immunity. denied as defendant failed to review hearing determination in a timely fashion as required by DOCS regs.

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

Signature date:
May 14, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Defendant’s Notice of Motion, Defendant’s Affirmation with annexed Exhibits A-E, Claimant’s Notice of Motion in Response to Summary Judgment and Claimant’s “Affirmation” with attached documents as well as annexed Exhibits A-E. Defendant, the State of New York, has brought this motion seeking an order granting summary judgment in its favor. Claimant, Aaron Callender, a pro se inmate, has opposed defendant’s motion.

Claimant alleges in his claim that Department of Correctional Services (DOCS) employees did not follow their own procedures by failing to timely respond to claimant’s appeal of a “Tier III hearing” decision. Claimant also contends that once he received a reversal of the Tier III hearing decision he was not returned to level three status for an additional thirty-six days.

Defendant further explains that on March 7, 2007 claimant, an inmate at the Southport Correctional Facility (Southport), was found guilty on a Superintendent’s Tier III hearing of committing an unhygienic act and interfering with an employee. Claimant received a penalty of six months in the special housing unit (SHU). Claimant then appealed the Tier III determination to the Commissioner, who reversed it on June 28, 2007. The determination was reversed on the grounds that due to an administrative oversight, the appeal had not been reviewed in a timely fashion.

Defendant informs the Court that Southport has a three-level assignment system known as the Progressive Inmate Movement System or PIMS. Defendant states that each increasing level accords SHU inmates greater privileges and reduced restrictions. As a result of the Tier III hearing, claimant was moved from level three status to level two status. Claimant alleges that he remained in level two status for an additional thirty-six days after his Tier III disposition was reversed.

As the party seeking summary judgment, defendant must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Medical Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Defendant seeks summary judgment based on immunity arguing that its actions were conducted under the authority of and in full compliance with the governing statutes and regulations.

The Court of Appeals has held that the actions of DOCS employees 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” (id. at 220). An example of such actions is confinement without granting a hearing or other required due process safeguards (id. at 221).

In the instant action defendant concedes that it did not follow its own regulations by failing to review claimant’s appeal in a timely fashion. Claimant has presented a Superintendent Hearing Disposition sheet which states that claimant should have been released from SHU on June 21, 2007. The letter from the Commissioner’s office explaining that claimant’s hearing was reversed was dated July 27, 2007. Additionally, claimant’s contention that he was held for thirty-six days after his disposition had been reversed has not been satisfactorily addressed by defendant. Defendant has failed to set out the administrative process for returning an inmate to his pre-disposition status once a reversal has been issued by the Commissioner. Thus, a portion of claimant’s time spent in level two status may be actionable and not covered by immunity.

Therefore, for the foregoing reasons, defendant’s motion for summary judgment is denied.

May 14, 2008
Hauppauge, New York

Judge of the Court of Claims