New York State Court of Claims

New York State Court of Claims
SMITH v. STATE OF NEW YORK, # 2021-051-035, Claim No. 136620, Motion No. M-97209


The Court granted the defendant's motion to dismiss claimant's tort claim alleging wrongful confinement, denial of ASAT programming, improper transfer, interference with medication, denial of Parole that all stemmed from a false positive drug test that was reversed and vacated.

Case information

UID: 2021-051-035
Claimant(s): ADAM R. SMITH
Claimant short name: SMITH
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 136620
Motion number(s): M-97209
Cross-motion number(s):
Claimant's attorney: THOMAS M. KHEEL, ESQ.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 6, 2021
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read on defendant's motion to dismiss the claim:

1. Notice of Motion with Affirmation of Bernard F. Sheehan, AAG, and attached exhibits, filed September 2, 2021;

2. Affirmation of Thomas H. Kheel, Esq., dated September 27, 2021;

3. Filed papers: claim.

Before the Court is defendant's motion to dismiss a tort claim that allegedly arose from an improperly administered urinalysis drug test that resulted in a false positive, the consequences of which was wrongful confinement, losses of privileges and access to alcohol and substance abuse treatment (ASAT) programing, transfer to another correctional facility that was further from his family, and delay in being paroled. Defendant's stated grounds for dismissal of the claim are: (1) the claim is untimely; (2) claimant did not meet the pleading requirements to state causes of action, (3) defendant is entitled to absolute immunity since its confinement of claimant was privileged; (4) the Court is without jurisdiction to review Department of Corrections and Community Supervision's (DOCCS) removal of claimant from the ASAT program and his transfer to another facility. For the reasons set forth in detail below, defendant's motion to dismiss is granted and the claim is dismissed.

New York courts have repeatedly rejected claimant's premise that he is automatically entitled to damages caused by a false positive test result simply because it was subsequently reversed and vacated. (Warren v State of New York, UID No. 2021-041-043 [Ct Cl, Milano, J., July 29, 2021]; McLeod v State of New York, UID No. 2021-038-545 [Ct Cl, DeBow, J., July 14, 2021]; Andrews v State of New York, UID No. 2021-053-534 [Ct Cl, Sampson, J., July 9, 2021]; Kahn v State of New York, UID No. 2021-032-035 [Ct Cl, Hard, J., April 13, 2021].) Furthermore, DOCCS is entitled to absolute immunity as to actions taken by its employees in furtherance of authorized disciplinary measures since they are quasi-judicial in nature. (Arteaga v State of New York, 72 NY2d 212 [1988]; Matter of Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013], lv denied 22 NY3d 852 [2013]; Shannon v State of New York, 111 AD3d 1077 [3d Dept 2013]). The protection of absolute immunity is lost only when the employees "exceed the scope of their authority or violate the governing statutes and regulations" (Ramirez v State of New York, 175 AD3d 1635, 1636 [3d Dept 2019], lv denied 35 NY3d 902 [2020], quoting Miller v State of New York, 156 AD3d 1067, 1067 [3d Dept 2017]; see also Arteaga v State of New York, 72 NY2d at 221; Loret v State of New York, 106 AD3d at 1159; Holloway v State of New York, 285 AD2d 765, 765 [3d Dept 2001]). Even if a violation is proven, DOCCS retains qualified immunity, unless the alleged violation implicates a constitutionally required due process safeguard (see generally Wolff v McDonnell, 418 US 539 [1974]; Matter of Texeira v Fischer, 26 NY3d 230, 234 [2015]).

Here, the claim neither identifies the alleged misfeasance on the part of defendant in administering the test, nor raises any issues as to how the hearing was conducted. The claim merely asserts that "[a]s a result of the Defendant's admitted negligence, errors, and omissions in administering and evaluating the said 'drug test'." (claim, at 2, 09.) Critically, a violation of DOCCS' drug testing directives does not constitute a due process violation. (see Raimirez v State of New York, 175 AD3d at 1638; Miller v State of New York, 156 AD3d 1067, 1068 [3d Dept 2017].) Given the omission in the claim of any allegations that the defendant either violated a rule or exceeded its authority, defendant retained absolute immunity as to its decision to discipline claimant as a result of the alleged false positive drug test. (see Kahn v State of New York, UID No. 2021-032-035 [Ct Cl, Hard, J., Apr. 13, 2021]; Tiritilli v State of New York, UID No. 2021-040-014 [Ct Cl, McCarthy, J., Apr. 5, 2021]; Mason v State of New York, UID No. 2020-015-075 [Ct Cl, Collins, J., Oct. 23, 2020].)

The Court agrees with defendant's alternative contention that the claim is untimely because neither the notice of intent to file a claim (allegedly served upon the Office of the Attorney General on November 19, 2019(1) ) nor the claim (filed and served on July 19, 2021) were served within 90 days of its accrual. The Court notes that claimant's answering papers did not address this basis for dismissal. September 18, 2019, the date claimant learned of the false positive date, is not the date his claim accrued as he asserts in his claim. (claim, at 3, 12.) To the extent claimant is arguing the defendant was negligent in administering the drug test, it accrued on the date he received his misbehavior report for drug use based on the alleged false positive test result, which was May 28, 2019. (Id at 2, 06; see Matter of Geneva Foundry Litig., 173 AD3d 1812, 1814 [4th Dept 2019].) As to his wrongful confinement claim, it is black letter law that such a claim accrues on the date that claimant is released from confinement. (see Davis v State of New York, 89 AD3d 1287 [3d Dept 2011] ["wrongful confinement or false imprisonment . . . are reasonably ascertainable upon a claimant's release from confinement and, therefore, it is on that date that the claimant's cause of action accrues"][internal citations omitted].) Claimant's placement in solitary confinement, which he refers to as "the box" ended on July 5, 2019. (Id at 2, 07.)

Likewise, the Court concurs with the defendant that claimant has not sufficiently pled separate causes of actions, as opposed to identifying damages, as to removal from the ASAT program, delay in being paroled, and transfer to a correctional facility further from his home. Additionally, as to these events, this Court lacks jurisdiction to review an alleged adverse administrative decision, which is the providence of the Supreme Court in an Article 78 proceeding. Accordingly, the claim must be dismissed because the Court lacks jurisdiction to review an administrative decision. (see Matter of Gross v Perales, 72 NY2d 231, 231 [1988].)

Accordingly, it is ordered that defendant's motion to dismiss (M-97209) is granted and claimant's Claim No. 136620 is dismissed.

December 6, 2021

Rochester, New York


Judge of the Court of Claims

1. Note, the defendant alleges that it was not served with the notice of intent to file a claim until December 9, 2019. Since both dates of service alleged by the parties are beyond 90 days after the claim accrued, the Court need not decide which date is correct.