New York State Court of Claims

New York State Court of Claims

LAMAGE v. THE STATE OF NEW YORK, #2009-044-527, Claim No. 115850, Motion Nos. M-76237, CM-76353


Defendant’s motion for summary judgment on wrongful confinement claim granted, and that cause of action is dismissed.

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: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 1, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, filed this claim (the Original Claim) to recover for personal injuries allegedly received as the result of an assault by correction officers employed at Elmira Correctional Facility. Defendant State of New York (defendant) answered and asserted two affirmative defenses. Claimant thereafter filed and served an “Amend-Supplement Claim” (the Amended Claim), adding a cause of action for wrongful confinement. Defendant answered the Amended Claim and asserted an additional affirmative defense. Claimant now moves for partial summary judgment on the wrongful confinement cause of action. Defendant opposes the motion and cross-moves to dismiss that cause of action. Claimant replies and opposes the cross motion. Claimant argues that defendant violated Department of Correctional Services (DOCS) Directive 4932 when its correction officer failed to issue a written report that claimant had been placed in keeplock prior to completing that officer’s shift. Claimant also contends that defendant’s failure to timely determine the appeal of his disciplinary hearing that was completed on September 23, 2008 also violated a DOCS regulation. Claimant asserts that because defendant violated these regulations, it lost any immunity afforded to its disciplinary procedure, and thus his confinement in keeplock was wrongful. Defendant argues that claimant’s motion should be denied based upon his failure to include a copy of the Original Claim with this motion. Defendant further contends that claimant was properly placed in keeplock during the pendency of his disciplinary hearing, and that even though the disciplinary determination was subsequently expunged, the intial outcome finding that claimant was guilty of the charged misconduct was not affected.

As defendant correctly notes, claimant has failed to include a copy of the Original Claim served in this action, and this motion could be denied solely on that procedural basis (see CPLR 3212 [b]; Greene v Wood, 6 AD3d 976, 977 [2004]). However, a copy of the Original Claim is both on file with the Clerk of the Court and attached as an exhibit to defendant’s cross motion papers (see e.g. Stiber v Cotrone, 153 AD2d 1006, 1007 [1989], lv denied 75 NY2d 703 [1990]). The record is therefore “sufficiently complete” for the Court to overlook claimant’s procedural defect and address the merits of his motion (Greene v Wood, supra; General Motors Acceptance Corp. v Albany Water Bd., 187 AD2d 894, 895 n [1992]).

Claimant, as the movant on this motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish a prima facie showing of entitlement to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra).

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 such hearings (Arteaga v State of New York, 72 NY2d 212 [1988]; Sims v State of New York, Ct Cl, Sept. 7, 2005, Lebous, J., Claim No. 101974 [UID # 2005-019-019]). Notwithstanding a reversal of the disciplinary charges, the immunity is retained as long as the disciplinary proceedings were conducted consistent with the procedures provided in the relevant DOCS rules and regulations (Arteaga v State of New York, supra; Davis v State of New York, 262 AD2d 887 [1999], lv denied 93 NY2d 819 [1999]). However, 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). Nevertheless, the violation of a rule or regulation alone is not a sufficient basis for a monetary award. Rather, the violation must have caused an actual injury or loss to the claimant (see e.g. Rivera v State of New York, Ct Cl, Feb. 8, 2006, Sise, P.J., Claim No. 102781 [UID # 2006-028-008]).

On September 16, 2008, claimant was issued a misbehavior report charging him with fighting, and was placed in keeplock pending a disciplinary hearing (Defendant’s Cross Motion to Dismiss, Exhibit E). After the disciplinary hearing commenced on September 19, 2008 and completed on September 23, 2008, claimant was found guilty of the misbehavior charged, and among other penalties, was sentenced to 30 days keeplock. The Hearing Officer credited claimant with his pre-hearing time spent in keeplock, and scheduled the release date for October 16, 2008 (Defendant’s Cross Motion to Dismiss, Exhibit F). On September 24, 2008, claimant filed an appeal which was affirmed on October 21, 2008. Because the appeal of the Tier II Disciplinary Hearing was not timely decided within 15 days of its submission as required by 7 NYCRR 253.8, defendant expunged claimant’s disciplinary hearing from his record (Defendant’s Cross Motion to Dismiss, Exhibit G).

Claimant was initially confined in keeplock pursuant to 7 NYCRR 251-1.6 (a), which provides that “[w]here an officer has reasonable grounds to believe that an inmate should be confined to his cell or room or housing area because he represents an immediate threat to the safety, security or order of the facility or in immediate danger to other persons or to property, such officer shall take reasonable and appropriate steps to so confine the inmate.” This regulation has been interpreted as “authorizing keeplock whenever an officer reasonably believes that a facility rule has been violated by an inmate, thus establishing an ‘immediate threat’ to the ‘order of the facility’ ” (Matter of Bowe v Smith, 119 Misc 2d 453, 455 [1983]); see also Matter of Pettus v West, 28 AD3d 907 [2006]).

Claimant alleges that because the correction officer who initially confined him failed to issue a written report to the Superintendent prior to going off duty, defendant violated 7 NYCRR 251-1.6 (e) (1), and therefore lost its immunity. Defendant does not dispute that there was no written report of claimant’s confinement on September 16, 2008 (Claimant’s Notice of Motion for Partial Summary Judgment, Exhibits F and G).

As claimant is aware, “[7 NYCRR 251-1.6 (e) (1)] does not require that the report be provided to the claimant,” and the failure to issue such a report does not implicate any due process safeguard (Lamage v State of New York, Ct Cl, Dec. 22, 2006, Collins, J., Claim No. 111068, Motion Nos. M-72162, M-72216, Cross Motion No. CM-72335 [UID # 2006-015-140]; but see Butler v State of New York, Ct Cl, June 12, 2002, McNamara, J., Claim No. 103066 [UID # 2002-011-106] [where the Court found that allegations of the claimant’s placement in a Special Housing Unit for protective custody, without issuance of either a written report under 7 NYCRR 251-1.6 (e) (1) or a timely written request for protective custody, supported a cause of action for wrongful confinement]). Moreover, there is no evidence that the violation formed the basis of the misbehavior report or that absent the violation, the outcome of claimant’s disciplinary hearing would have been different (see Craft v State of New York, 189 Misc 2d 661 [2001]; Lamage v State of New York, supra). Accordingly, defendant’s violation of 7 NYCRR 251-1.6 (e) (1) cannot support a cause of action for wrongful confinement as a matter of law.

Claimant’s allegation that defendant waived its immunity and is subject to liability based upon an undisputed violation of 7 NYCRR 253.8 is also without merit. This regulation provides that an inmate may submit a written appeal to the facility superintendent and “[t]he superintendent or his designee shall issue a decision within 15 days of receipt” (7 NYCRR 253.8). In this case, claimant cannot establish that he suffered an actual injury or loss. Even if the appeal had been timely decided, the ultimate determination was the affirmance of the Hearing Officer’s Decision, which included a 30-day keeplock sentence. Claimant therefore would not have been released from his confinement prior to expiration of his sentence. Accordingly, the violation of 7 NYCRR 253.8 is also insufficient to support a cause of action for wrongful confinement as a matter of law.

Because defendant’s regulatory violations do not provide a basis of liability for wrongful confinement as a matter of law, claimant’s motion for partial summary judgment is denied. For the same reason, defendant’s motion for summary judgment must be granted. The cause of action for wrongful confinement asserted in the Amended Claim is hereby dismissed. However, it should be noted that the cause of action for assault as alleged in the Original Claim remains pending.

June 1, 2009
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion and defendant’s cross motion:

1) Notice of Motion filed on February 10, 2009; Affidavit of Edwin Lamage sworn to on February 3, 2009, and attached Exhibits A through L.

2) Notice of Cross Motion filed on March 6, 2009; Affirmation of Joseph F. Romani, Assistant Attorney General, dated March 4, 2009, and attached Exhibits A through G.

3) Claimant’s Reply filed on March 18, 2009.

Filed papers: Claim filed on September 17, 2008; Verified Answer filed on October 8, 2008; Amended Claim filed on November 5, 2008; Verified Answer to Amended Claim filed on November 10, 2008.