Opinion
# 2020-040-047 Claim No. 134119 Motion No. M-95693
12-07-2020
NELSON ALVAREZ, #95A2343 v. THE STATE OF NEW YORK
Nelson Alvarez, 95-A-2343, Pro Se LETITIA JAMES Attorney General of the State of New York By: Charles Lim, Esq., AAG
Synopsis
State's Motion for summary judgment dismissing wrongful confinement Claim of Inmate Claimant granted.
Case information
| UID: | 2020-040-047 |
| Claimant(s): | NELSON ALVAREZ, #95A2343 |
| Claimant short name: | ALVAREZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134119 |
| Motion number(s): | M-95693 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Nelson Alvarez, 95-A-2343, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Charles Lim, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 7, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion for summary judgment pursuant to CPLR 3212 is granted and the Claim herein is dismissed.
Defendant moved to dismiss the Claim pursuant to CPLR 3211 (a)(7) for failure to state a cause of action. However, Defendant had served a Verified Answer to the Claim prior to making the Motion, thus the Motion was deemed a CPLR 3212 Motion for summary judgment based upon CPLR 3211(a)(7) grounds asserted in the Answer (Oppenheimer v State of New York, 152 AD3d 1006 n. 1 [3d Dept 2017]). By Daily Report dated August 31, 2020, the Court notified the parties that, pursuant to CPLR 3211(c), it was treating the Motion as one for summary judgment and adjourned the Motion from August 26, 2020 to September 30, 2020 to allow the parties to submit additional information, should they wish.
This pro se Claim, which was filed in the Office of the Clerk of the Court on December 10, 2019, alleges that Claimant, an inmate in custody of the New York State Department of Corrections and Community Supervision (hereinafter, "DOCCS"), was wrongfully confined to the Special Housing Unit (hereinafter, "SHU") and keeplock at Franklin Correctional Facility (hereinafter, "Franklin") and Washington Correctional Facility, following a Tier III disciplinary hearing, where he was found guilty of violating Standards of Inmate Behavior Rule 113.24 (drug use).
The events giving rise to this action are not in dispute. On April 26, 2019, Claimant was charged with violating Standards of Inmate Behavior Rule 113.24 (drug use) while incarcerated at Franklin. On May 3, 2019, Claimant was found guilty of the charge at a Tier III disciplinary hearing, and, inter alia, 100 days of confinement to SHU was imposed. Claimant asserts that the equipment used to test his urine sample was defective and Defendant had an obligation to ensure that the equipment worked properly. On September 16, 2019, Claimant received notification that DOCCS had administratively reversed the Tier III determination and expunged the determination from his record.
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such a prima facieshowing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
In Arteaga v State of New York (72 NY2d 212, 214 [1988]), the Court of Appeals held that the State had absolute immunity from liability in the area of prison discipline when its employees act under the authority of and in full compliance with the statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR; parts 250-254), and their actions constitute discretionary conduct of a quasi-judicial nature (see also Shannon v State of New York, 111 AD3d 1077, 1077 [3d Dept 2013]; Loret v State of New York, 106 AD3d 1159, 1159-1160 [3d Dept 2013], lv denied 22 NY3d 852 [2013]; Davis v State of New York, 262 AD2d 887, 888 [3d Dept 1999]). Such immunity attaches even if the determination is later reversed administratively or as the result of a successful article 78 proceeding (see Arteaga v State of New York, supra at 215). The Arteaga Court stated, however, that actions of correction employees confining an inmate "without granting a hearing or other due process safeguards (see 7 NYCRR 251-5.1; parts 252-254) would not receive immunity" (Arteaga v State of New York, supra at 221; see also Moustakos v State of New York, 133 AD3d 1268, 1269 [4th Dept 2015] [where "the actions of correction personnel have violated the due process safeguards contained in 7 NYCRR parts 252 through 254, those actions will not receive immunity" [internal quotation marks and citations omitted]).
Defendant asserts that Claimant does not allege in the Claim that he was denied procedural due process in the conduct of the disciplinary hearing that resulted in his confinement. Defendant states that Claimant alleges that he was wrongfully confined on the basis of a false positive drug test result (Affirmation of Charles Lim, Esq., Assistant Attorney General [hereinafter, "Lim Affirmation"], ¶ 14).
In Ramirez v State of New York (175 AD3d 1635, 1638 [3d Dept 2019]), the Appellate Division, Third Department stated that "a wrongful confinement action cannot be based on the mishandling of a urine sample because the violation of drug testing directives does not constitute a due process violation" (see Miller v State of New York, (156 AD3d 1067 [3d Dept 2017]). In Miller, the Court rejected an inmate's claim that the State lost its veil of absolute immunity when drug testing directives were violated, stating that those directives "do not relate to the due process concerns of the hearing and do not serve as a basis for the wrongful confinement cause of action" (id. at 1068). Thus, not all rule or regulation violations implicate due process protections, and, in turn, where there has been no due process violation, the State retains its absolute immunity (see, e.g., Bethune v State of New York, 50 Misc 3d 1216 [A] [Ct Cl, 2015], *3-4; Ramos v State, UID No. 2018-032-093 [Ct Cl, Hard, J., Dec. 28, 2018]; Claudio v State, UID No. 2018-054-016 [Ct Cl, Rivera, J., March 22, 2018]).
Thus, the Court concludes that Defendant has made a prima facie showing that it is entitled to absolute immunity under Arteaga. The burden, therefore, shifts to Claimant to submit evidentiary facts or materials sufficient to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., supra at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
In opposition, Claimant asserts that he is not a lawyer, that he is having difficulty getting access to the facility law library, and that Defendant knew the drug testing results were unreliable, based upon a Memorandum dated November 27, 2019 from the Acting Commissioner of DOCCS to all inmates. However, Claimant has failed to establish that his due process rights were impinged. Claimant has failed to raise a triable issue of fact sufficient to defeat Defendant's Motion.
Defendant asserts that Claimant's second cause of action asserting negligence should be dismissed as it is well settled that, where a negligence cause of action is asserted in the same pleading, and on the same facts, as a wrongful confinement cause of action, the negligence cause of action must be dismissed, as it cannot supplant traditional tort remedies (Lim Affirmation, ¶ 23). While it is not clear to the Court that the second cause of action asserts a negligence claim, or if it merely expands upon the wrongful confinement cause of action, "[t]o the extent claimant alleges a negligence cause of action, it must be dismissed as a claim for negligence may not supplant the traditional tort remedies of false imprisonment" (Nazario v State of New York, 24 Misc 3d 443, 455 [Ct Cl 2009], affd 75 AD3d 715 [3d Dept 2010], lv denied 15 NY3d 712 [2010]; see Santoro v Town of Smithtown, 40 AD3d 736, 738 [2d Dept 2007]; Simon v State of New York, 12 AD3d 171 [1st Dept 2004]; Boose v City of Rochester, 71 AD2d 59, 62 [4th Dept 1979]).
Based on the foregoing, Defendant's Motion is granted and the Claim is hereby dismissed.
December 7, 2020
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion for summary judgment: Papers Numbered Defendant's Notice of Motion to Dismiss, Affirmation in Support and Exhibits attached 1 Claimant's letter dated August 5, 2020 with Exhibits attached 2 Claimant's letter dated September 8, 2020 with Exhibit attached 3 Filed Papers: Claim, Answer