New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2009-032-506, Claim No. 105033


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:
Ofodile & Associates, P.C.By: Anthony C. Ofodile, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
October 26, 2009

Official citation:

Appellate results:

See also (multicaptioned case)



On March 25, 2000, Claimant Michael Brown, while on temporary release from Hudson Correctional Facility (HCF), called 911 seeking medical assistance because of an apparent drug and alcohol overdose (Exhibit C, p 7, Exhibits D, F-1 and H)[1]. Claimant was granted permission to participate in the Work Release Program on February 23, 2000 (Exhibit B) and signed the rules and regulations regarding such program (Exhibit A). One of the conditions of the program is abstention from alcohol and drug use. Claimant also signed a “Temporary Release-Memo of Agreement” through which he agreed that his participation in the program was a privilege and could be revoked at any time for violations of any provision of the program (Exhibit B, p 3). HCF was notified by the Troy, New York, Police Department that claimant had called 911 and indicated that he had taken an overdose of drugs and alcohol. HCF arranged for claimant to be picked up at the Albany Medical Center (AMC) and transported to the Coxsackie Correctional Facility.

Claimant alleges that on March 27, 2000 he was denied the liberties of work release. Claimant was served with a Misbehavior Report, dated March 30, 2000, which alleged three violations against him: the use of drugs, the use of alcohol and a violation of the Temporary Release Program’s rules (Exhibit F-1). A Tier III hearing was held on April 5, 2000, which resulted in a finding against Claimant on all three charges. Claimant was sentenced to six months in the Special Housing Unit (SHU) but three months of that sentence was suspended. Claimant appealed that determination. On October 2, 2001, the Commissioner’s designee determined the hearing had not been commenced within seven days of confinement and reversed the finding against claimant (Exhibits 2 and 3). A trial on this claim, which alleges wrongful confinement to the SHU (Exhibit 5) was held on June 1, 2009.

Claimant alleges and testified at trial that he submitted a urine specimen for alcohol and illicit drug use screening and that such screening was negative (Claim ¶¶ 4-5). No other evidence corroborated claimant’s testimony. A request for the test results was made during discovery but defendant could not locate the alleged test results. Other evidence at trial indicated that when claimant was at AMC , he appeared “mildly intoxicated” and was diagnosed with alcohol and cocaine abuse (Exhibit D, pp 3-4). Retired Correction Officer Paul Macko, who was sent to AMC to pick up claimant, testified that while he observed claimant change from street clothes to inmate “greens”, claimant’s speech was slurred, he had poor balance and he smelled of alcohol (see also, Exhibit G).

At trial, claimant testified that his neighbors called 911 on March 25, 2000, but then retracted that statement. He admitted that he called 911 on said date because he was under stress. He maintained during trial that he “felt” like taking drugs and alcohol but he did not do so. He also maintained that the physician at AMC did not properly examine or medically treat him.
After considering all the evidence, including the observance of the witnesses’ demeanor and the exhibits admitted into evidence during trial, the Court finds that claimant was not a credible witness and that he has failed to establish a viable cause of action against defendant. The weight of the documentary evidence and the testimony of retired Correction Officer Macko support a finding that claimant was, indeed, under the influence of drugs and alcohol on

March 25, 2000 while participating in the Temporary Work Release Program. While claimant places great weight on the fact that his Tier III hearing was conducted nine days after his placement in general confinement on March 27, 2000, he failed to prove that he was entitled to damages due to such delay. As held in Henderson v Coughlin (163 Misc 2d 20 [Ct Cl 1994]) and Ray v State of New York (UID # 2002-032-031, Motion No. M-66024, Mar. 31, 2003, Hard, J. [Ct Cl]), no liability can result unless claimant can prove that the regulatory violation changed the outcome of the disciplinary hearing. Here, it is clear that claimant used drugs and alcohol in violation of the prison rules and, therefore, the outcome of the Tier III was valid on the merits. Although claimant adamantly testified that he underwent a urinalysis screening for drug and alcohol that resulted negatively, he produced no other witness or document to corroborate such claim. The Court does not find it necessary to address whether defendant’s actions were discretionary or ministerial, or whether defendant owed claimant a special duty (see McLean v City of New York, 12 NY3d 194 [2009]), since claimant did not incur an injury.

In light of the foregoing, the claim is dismissed[2] and the Chief Clerk is directed to enter judgment accordingly. Any applications on which the Court previously reserved judgment or which were not previously decided are denied.

Let judgment be entered accordingly.

October 26, 2009
Albany, New York

Judge of the Court of Claims

[1].Exhibit H is admitted as a business record pursuant to CPLR § 4518 (see also, Commerce & Indus. Ins. Co. v Sciales, 132 AD2d 516 (2d Dept 1987).

[2].The Court notes that claimant failed to offer any proof regarding ¶ 21 of his claim regarding a reduction of hypertension medication “during, and result of, punitive confinement.”