Pro se inmate's motion to set aside the trial decision to the extent it dismissed his cause of action for wrongful confinement was denied.
|Claimant short name:||LAMAGE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Edwin Lamage, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Thomas R. Monjeau, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 1, 2010|
|See also (multicaptioned case)|
Claimant, a pro se inmate, moves pursuant to CPLR 4404 (b) to set aside the trial decision and judgment entered thereon, which dismissed, inter alia, his second cause of action for wrongful confinement.
Following a prison disciplinary hearing, claimant was found guilty of fighting which resulted in his confinement to his cell from May 10, 2004 through June 9, 2004.(1) Claimant argues that the Decision and Judgment dismissing his wrongful confinement cause of action must be set aside as a matter of law because the Hearing Officer's denial of his request for witnesses constitutes a due process violation. The applicable regulation permits an inmate to call witnesses on his own behalf "provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals" (7 NYCRR 253.5 [a]). This regulation also requires that the reasons for the denial of an inmate's request for witnesses must be provided.
Consideration of claimant's motion is foreclosed as the claimant's time to move to set aside the decision and judgment has long passed. The Decision and Judgment were entered in August, 2009 and claimant was required to submit his motion "within fifteen days after decision . . ." (CPLR 4405). Moreover, in the Court's view the Hearing Officer's denial of claimant's request for witnesses was not a due process deprivation but a discretionary determination for which the State is entitled to absolute immunity (Arteaga v State of New York, 72 NY2d 212 ; Holloway v State of New York, 285 AD2d 765 ). In any event, the Hearing Officer stated his good faith reasons for the denial both in writing and during the course of the hearing (Exhibits 13; 13A). No due process violation occurred in these circumstances (cf. Matter of Alvarez v Goord, 30 AD3d 118 ; DuBois v State of New York, 25 Misc 3d 1137 ).
Clamant's motion is denied.
June 1, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. This determination was administratively reversed (Exhibit 12).