Roye v State of New York
2010 NY Slip Op 34127(U)
September 30, 2010
Court of Claims
Docket Number: UID: 2010-039-206
Judge: James H. Ferreira
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ROYE v. STATE OF NEW YORK, # 2010-039-206, Claim No. , Motion No. M-78310
Synopsis
Movant's application for permission to file a late claim, pursuant to Court of Claims Act §10 (6), is denied.
Movant appears to allege wrongful confinement, violations of State regulations regarding the right to call
witnesses at a disciplinary hearing, violation of Correction Law § 610, and constitutional torts involving due
process violations at his disciplinary hearing and interference with his exercise of religion. The Court is without
jurisdiction. Sufficient proof was offered to establish that the notice of intention was not properly served as
required by Court of Claims Act § 11 (a) (I). Moreover, following an analysis of the § 10 (6) factors, the Court
concludes, among other things, that the claim does not appear to be meritorious and that an alternative avenue of
redress exists.
Case information
UID: 2010-039-206
Claimant(s): DAVE ROYE
Claimant short name: ROYE
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s):
Motion number(s): M-78310
Cross-motion number(s):
Judge: James H. Ferreira
Claimant's attorney: Dave Roye, pro se
Hon. Andrew M. Cuomo
Attorney General of the State of New York
Defendant's attorney:
By: Michael C. Rizzo
Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 30, 2010
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)
Decision
Movant, an inmate at Coxsackie Correctional Facility, filed a motion with the Clerk of the Court of Claims on
May 25, 2010, pursuant to Court of Claims Act § 10(6), seeking permission to file a late claim arising from an
inspection of his cell on July 18, 2009. Movant's submissions appear to allege wrongful confinement, violations
of State regulations regarding the right to call witnesses at a disciplinary hearing, violations of Correction Law §
610, and constitutional torts involving due process violations at his disciplinary hearing and interference with his
exercise of religion.(1) Defendant opposes the motion on the basis that movant has not proffered an acceptable
excuse for the delay and that the Proposed Claim does not appear to be meritorious. Defendant argues further that
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a notice of intention that movant had served on defendant was neither personally served upon the Attorney
General, nor served by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a).
In the instant case, movant alleges that during a search of his cell on July 18, 2009, Correction Officer Michalski
found and seized, inter alia, eight photographs depicting movant and other Rastafarian members displaying the
triangle symbol in a downward position. C.O. Michalski subsequently prepared a misbehavior report charging
movant with, inter alia, possession of gang material(Proposed Claim at Exhibit A). A Tier III disciplinary hearing
was held on July 28 and 29, 2010 (Proposed Claim at Exhibit C). Movant requested the testimony of Prison
Chaplain Reddy, C.O. Michalski and David Cole, the prison recreation supervisor, who also functions as a gang
specialist. Captain Shanley, the hearing officer, allowed Cole to testify, but denied in writing the requests for
Reddy and Michalski to testify on the grounds that Reddy's testimony "is in Material [sic] Not an expert in Gang
Photo's" and that C.O. Michalski's testimony "would be Redundant" (Proposed Claim at Exhibit D). Movant was
found guilty of the possession of gang material charge and sanctions were imposed, including sixty days
keeplock, restrictions of certain privileges such as commissary and phone use, and the destruction of the seized
photographs (Proposed Claim at Exhibit B).(2) Movant subsequently submitted an administrative appeal dated
August 3, 2009 (Proposed Claim at Exhibit F). By decision rendered September 16, 2009, the Director for
Special Housing/Inmate Disciplinary Program reversed the July 29, 2009 hearing decision (Proposed Claim at
Exhibit G). No explanation for the reversal was provided.
Thereafter, movant filed an Inmate Grievance Complaint dated October 1, 2009, seeking one million dollars on
the grounds that he was wrongfully confined because of his religious beliefs (see id. at Exhibit I). The grievance
was denied by the Inmate Grievance Program Superintendent, who noted that "monetary awards are beyond the
purview of the IGRC" (id.). Movant appealed that determination. In a decision dated November 18, 2009, the
Central Office Review Committee (CORC) affirmed the Superintendent's determination, stating that monetary
relief is not available through the grievance process. CORC stated further that "the reversal of the grievant's
misbehavior report does not constitute malfeasance on the part of staff" and that "CORC has not been presented
with sufficient evidence that staff were unfair or unprofessional during the grievant's disciplinary proceeding"
(id.).
Preliminarily, defendant has offered sufficient proof in opposition to movant's motion to establish that the notice
of intention was not properly served as required by Court of Claims Act § 11 (a) (i). That section provides, in
relevant part, that "[a]ny notice of intention shall be served personally or by certified mail, return receipt
requested, upon the attorney general within the times hereinbefore provided for service upon the attorney
general." "The Court of Appeals has noted in interpreting the above provision that 'statutory requirements
conditioning suit must be strictly construed' " (Rodriguez v State of New York, 307 AD2d 657 [2003], quoting
Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). It is well settled that "[o]rdinary mail is not
one of the methods of service authorized by Court of Claims Act § 11 (a) and, '[g]enerally, the use of ordinary
mail to serve the claim upon the Attorney-General is insufficient to acquire jurisdiction over the State' " (Turley v
State of New York, 279 AD2d 819, 819 [2001], quoting Philippe v State of New York, 248 AD2d 827 [1998]; see
also Govan v State of New York, 301 AD2d 757, 758 [2003], lv denied 99 NY2d 510 [2003]; Edens v State of
New York, 259 AD2d 729 [1999]).
In opposition to the motion, defendant offers the affidavit of Assistant Attorney General Michael C. Rizzo.
Attached to the affidavit is, inter alia, a copy of the notice of intention, the mailed envelope and an affidavit of
service (see Affidavit in Support of Defendant's Motion to Dismiss, Exhibit A).(3) These documents indicate that
the notice of intention was served on the Office of the Attorney General by regular mail on October 8, 2009 (see
id.). Notably, the envelope does not contain a return receipt, and the affidavit of service indicates the notice of
intention was mailed in a "post paid wrapper" to the Attorney General's Office after deposit in "an official
depository of the Unites States Postal Service, said box being under the exclusive care of the New York State
Department of Correctional Services" (id.). Moreover, movant does not dispute the manner of service (see
Motion for Permission to File a Late Claim, ķ 2). Thus, movant has not acquired jurisdiction over the State
because the notice of intention was sent by regular mail. Consequently, movant now seeks permission from the
Court to file a late claim.
Court of Claims Act § 10 (6) provides, in relevant part, that
"[a] claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a
notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving
upon the attorney general the claim or notice of intention, may, nevertheless, in the discretion of the court, be
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permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would
be barred under the provisions of article two of the civil practice law and rules."
"[A] motion for leave to serve a late claim may not be entertained after the statute of limitations for a 'like claim
against a citizen of the state' has expired" (Crum and Foster Ins. Co. v State of New York, 25 AD3d 643, 644
[2006]; see also Williams v State of New York, 235 AD2d 776 [1997] lv denied 90 NY2d 806 [1997] ["Court of
Claims § 10 (6) permits the late filing of a claim but only if the application is made within the applicable Statute
of Limitations period"]; Marine Midland Bank, N.A., v State of New York, 195 AD2d 871, 872 [1993], lv denied
82 NY2d 661 [1993] ["claimant is permitted to file a late claim only if the underlying cause of action is not time
barred"]). Identifying the applicable statute of limitations from article two of the civil practice law and rules
"depends upon the nature of the cause of action asserted" (O'Neal v State of New York, UID No. 2007-015-145,
Claim No. 112354, Motion Nos. M-72277, M-72300, January 9, 2007, Collins, J). To the extent that movant
seeks damages for his alleged wrongful confinement, the Court concludes that the application for late claim relief
is timely. It is well settled that "[a] claim for wrongful confinement accrues on 'the date on which [claimant's]
confinement terminated' " (Jones v State of New York, UID No. 2010-041-020, Claim No. 118080, Motion No.
M-78009, Milano, J., May 10, 2010, quoting Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005],
lv denied 5 NY3d 710 [2005]). Here, the earliest date of accrual was September 16, 2009, the date the
Superintendent's Decision imposing 60-days keeplock was reversed (see Proposed Claim at Exhibit G).
Allegations of wrongful confinement have been interpreted by courts both as an intentional tort, in that such
allegations may be "considered a 'species' of false imprisonment," (O'Neal v State of New York, supra, quoting
Gittens v State of New York, 132 Misc 2d 399 [1986]), and, within the prison setting, as sounding in negligence,
in that "liability for wrongful confinement may be imposed for ministerial errors" (id.; see also Ramirez v State
of New York, 171 Misc 2d 677 [1997]; Sudler v State of New York, UID #2009-038-546, Motion No. M-76072,
June 3, 2009, DeBow, J.). The statute of limitations for an action to recover damages for the tort of false
imprisonment, or wrongful excessive confinement, is one year, and for wrongful confinement sounding in
negligence, the statute of limitations is three years (see CPLR §§ 215 [3] and 214). In either instance, movant's
late claim application is timely since his motion papers were filed with the Chief Clerk of the Court of Claims on
May 25, 2010, within one year following the accrual of the claim (see Proposed Claim at Exhibit G).
The causes of action alleging constitutional torts(4) - violation of movant's due process rights during his
disciplinary hearing and his right to exercise his religion - are subject to a three year statute of limitations
pursuant to CPLR § 214 (5) (see Brown v State of New York, 250 AD2d 314, 318 [1998]). Thus, since the instant
motion was filed on May 25, 2010, and these particular causes of action accrued, at the earliest, in July 2009, the
motion is timely, and the Court has jurisdiction to determine its merits.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for
permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]; see also Calco v
State of New York, 165 AD2d 117, 119 [1991], lv denied 78 NY2d 852 [1991]). When deciding whether to grant
an application to file a late claim, the court is required to consider
"among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the
essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances
underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the
attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial
prejudice to the state; and whether the claimant has any other available remedy" (Court of Claims Act § 10 [6]).
"No single factor is deemed controlling, as the presence or absence of any one factor is not determinative"
(Matter of Beckford v State of New York, 264 AD2d 841 [1999]; see also Bay Terrace Coop. Section IV v New
York State Employees Retirement Sys., Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]).
As to the excuse proffered by movant for the delay in filing the claim, movant attributes the delay to the actions
of "the inmate law clerk who . . . failed to inform him of the correct process of service of the notice" (Motion for
Permission to File a Late Claim, ķ 2). "To be sure, ignorance of the law is not an acceptable explanation for the
failure to serve a timely notice of claim" (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [2002], lv
dismissed 99 NY2d 589 [2003]; see also Matter of Lynch v State of New York, 2 AD3d 1002 [2003]; Matter of
Thomas v State of New York, 272 AD2d 650, 651 [2000]). Accordingly, this factor weighs against movant.
The three Court of Claims Act § 10 (6) factors of notice of the essential facts, an opportunity to investigate and
the lack of substantial prejudice weigh in movant's favor. The disciplinary incident underlying the instant motion
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was investigated by defendant and was the subject of an administrative appeal in which defendant was a party. In
addition, defendant does not contest these factors in opposition to the motion.
However, "the factor that has been characterized as the most decisive component in determining a motion under
Court of Claims § 10 (6) . . . [is] whether the proposed claim appears meritorious" (Dippolito v State of New
York, 192 Misc 2d 395, 396 [2002]), "as it would be futile to permit a defective claim to be filed even if the other
factors in Court of Claims Act § 10 (6) supported the granting of the claimant's motion" (Savino v State of New
York, 199 AD2d 254, 254-255 [1993]. "In order for a claim to 'appear to be meritorious' . . . it must not be
patently groundless, frivolous, or legally defective, and . . . the court must find, upon consideration of the entire
record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a
valid cause of action exists" (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [1977]; see
also Rizzo v State of New York, 2 Misc 3d 829, 833-834 [2003]).
It is well established that the actions of correctional facility employees with respect to inmate disciplinary matters
are quasi-judicial in nature and, unless the employees exceed the scope of their authority or violate the governing
rules and regulations, the State has absolute immunity for those actions (Arteaga v State of New York, 72 NY2d
212 [1988]; Holloway v State of New York, 285 AD2d 765 [2001]; Varela v State of New York, 283 AD2d 841
[2001]; Davis v State of New York, 262 AD2d 887 [1999]; see also Winfield v State of New York, UID No.
2008-015-036, Claim No. None, Motion No. M-74528, May 13, 2008 [Collins, J.]). This principle flows from the
reality that decisions to prepare and file misbehavior reports, confine inmates, and make dispositions following
Superintendents' hearings "entail discretionary decisions . . . where the exercise of reasoned judgment can
produce different acceptable results" (Arteaga v State of New York, supra at 219).
As the Court of Appeals recognized, the absolute immunity afforded corrections personnel who undertake
authorized prison disciplinary measures is grounded in policy considerations:
In carrying out their duties relating to security and discipline in the difficult and sometimes highly stressful prison
environment, correction employees, like other officials with quasi-judicial responsibilities, should not be
inhibited because their conduct could be the basis of a damage claim.
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Because of the unquestioned risks to inmates, employees, and the public from a breakdown in order and
discipline in correctional facilities . . . it is particularly important that correction officers not be dissuaded by the
possibility of litigation from making the difficult decisions which their duties demand. Nor should correction
personnel acting as reviewing officers feel reluctant to reverse hearing determinations because doing so might
expose the State to liability.
(id. at 219, 220). This immunity attaches even if the finding of a violation is subsequently reversed
administratively or following a successful article 78 proceeding (Holloway v State of New York, supra at 766
[2001]).
Upon applying these principles to movant's claim of wrongful confinement, the Court finds that the claim does
not appear to be meritorious. A claim for wrongful confinement must establish that "defendant intended to
confine the plaintiff, that the plaintiff was conscious of the confinement and did not consent to the confinement,
and that the confinement was not otherwise privileged (Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]).
Here, the actions of defendant in bringing disciplinary charges, holding disciplinary hearings and imposing
disciplinary penalties are privileged. Such conduct represents the exercise of discretion and quasi-judicial power
that is immune from liability under Arteaga v State of New York (supra). The 60 days keeplock imposed on
movant is the type of discretionary disposition or decision-making that falls within the lawful duties of
correctional personnel (see 7 NYCRR § § 251-1.6, 251-5.1, 253.7, 254.7). No meritorious cause of action for
wrongful confinement or false imprisonment lies where the confinement is directed pursuant to statutory or
regulatory authorization (see Ramirez v State of New York supra; Gittens v State of New York, supra). Even
assuming movant was alleging wrongful excessive confinement within a prison setting, movant has offered no
proof that his confinement was beyond the 60 day sanction (see Gittens v State of New York, supra at 406-407).
Movant asserts further that defendant violated regulations governing disciplinary hearings (7 NYCRR Part 253)
and superintendent's hearings (7 NYCRR Part 254) by refusing to hear testimony from Chaplain Reddy and C.O.
Michalski. 7 NYCRR § 253.5 (a) and § 254.5 (a) provide, in relevant part, that an inmate "may call witnesses on
his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional
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safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a
written statement stating the reasons for the denial, including the specific threat to institutional safety or
correctional goals presented." Here, the Hearing Officer set forth in writing the reasons for denying movant's
request (see Proposed Claim at Exhibit D), and thus, the regulation was not violated (compare Matter of
Henderson v New York City Dept. of Correction, 274 AD2d 328 [2000]; DuBois v State of New York, 25 Misc
3d 1137, 1142 [2009]).
Similarly, the allegations that defendant violated Correction Law § 610 do not have the appearance of merit.
Movant alleges the photographs seized during the cell frisk by C.O. Michalski were related to his religious
beliefs and practices. The Inmate Misbehavior Report prepared by C.O. Michalski describes the seized items as
"8 photographs that appear to be of unauthorized gang material" (Proposed Claim at Exhibit A). The Court finds
that these actions by the correction officer - removing materials believed to be gang material from movant's cell
and then filing an Inmate Misbehavior Report - were quasi-judicial acts within "the 'formidable tasks' of
maintaining order and security in correctional facilities and protecting the safety of inmates and employees"
(Arteaga v State of New York, supra at 217). Such conduct reflects the exercise of a discretionary function or
judgment call and falls within the ambit of actions for which the State has absolute immunity.(5) Moreover, an "
[i]nmate['s] rights to religious freedom must be balanced against security considerations and the State's legitimate
correctional goals" (Matter of Cancel v Goord, 278 AD2d 321, 323 [2000], lv denied 96 NY2d 707 [2001]).
Barring an inmate from possession of materials perceived by a correction officer to be gang-related is a legitimate
goal consistent with maintaining order and security in a prison setting (see Matter of Mercado v Selsky, 47 AD3d
1167, 1168 [2008], lv denied 10 NY3d 713 [2008]; Matter of Buford v Goord, 258 AD2d 761, 762 [1999]).
As to the constitutional torts alleging that defendant denied movant his due process right to call witnesses and
present evidence at his hearing, and interfered with his religious freedoms, it must be noted that the Court of
Appeals has "recognized the existence of a constitutional tort as a 'narrow remedy' to assure a constitutional
provision's effectiveness and to further its purpose" (Love v State of New York, UID No. 2009-044-546, Claim
No. 116463, Motion Nos. M-76444 and M-76615, August 12, 2009 [Schaewe, J.], quoting Brown v State of New
York, supra at 192; Laraby v State of New York, UID No. 2010-015-508, Claim No. 113283, February 23, 2010
[Collins, J.]). Moreover, "[a] constitutional tort claim is barred when a [movant] has an alternative legal remedy
to protect his or her constitutional rights" (Deleon v State of New York, 64 AD3d 840 [2009], lv denied 13 NY3d
712 [2009]; see Martinez v City of Schenectady, supra at 83; Shelton v New York State Liq. Auth., 61 AD3d
1145, 1150 [2009]; Waxter v State of New York, 33 AD3d 1180, 1181-1182 [2006]; Bullard v State of New York,
307 AD2d 676, 678-679 [2003]).
Upon applying these principles to this motion, the Court finds that neither of these constitutional claims have the
appearance of merit. As to the allegations regarding due process violations during the disciplinary hearing,
movant could have availed himself of alternative remedies such as seeking Article 78 relief (see e.g. Matter of
Stallone v Fischer, 67 AD3d 125 [2009]; Matter of Paton v Coughlin, 225 AD2d 991 [1996]; Matter of
Domenech v Goord, 196 Misc 2d 522, 527-528 [2003], appeal dismissed 20 AD3d 416 [2005]). In any event, "
[w]hile an inmate has a conditional right to call witnesses at a disciplinary hearing (see 7 NYCRR 254.5 [a]),
there is no absolute right to confront or cross-examine them (see Matter of Abdur-Raheem v Mann, 85 NY2d
113, 119 [1995])" (Matter of Murphy v Selsky, 3 AD3d 631, 632-633 [2004]). Further, where the hearing officer
has made written determinations that the testimony of the requested witnesses would be "redundant, irrelevant or
threatening to the facility's safety", the officer's decision not to call them does not constitute a violation of
movant's due process rights (Matter of Lewis v Lacy, 233 AD2d 637 [1996]; see also Matter of Boyd v Coughlin,
216 AD 2d 617 [1995]). Here, Captain Shanley allowed testimony from Coles, a DOCS employee with
knowledge about gangs, but denied, in writing, the requests to call Reddy, on the grounds that such testimony
would be immaterial, and C.O. Michalski, because his testimony would be redundant (Proposed Claim at Exhibit
D). Accordingly, to the extent movant alleges a State constitutional due process violation, the Court finds that the
cause of action has no appearance of merit.
As to the cause of action alleging that defendant infringed upon movant's right to exercise his religion, Correction
Law § 610 (3) directs an inmate who believes that he or she has been aggrieved to seek relief by instituting
"proceedings in the supreme court of the district where such [correctional facility] is situated, which is hereby
authorized and empowered to enforce the provisions of the section." In light of this alternative avenue of redress
under Correction Law § 610 (3), the Court "does not find that an action for money damages in the Court of
Claims is necessary to ensure the full realization of [movant's] constitutional rights" (Laraby v State of New
York, supra; see also Love v State of New York, supra). Even assuming no alternative avenue of relief was
available, the Court finds that the cause of action does not have sufficient merit. While it is undisputed that the
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State constitutional right to religious freedom provided under section 3 of article 1 of the State Constitution is
extended to those incarcerated in New York correctional facilities by Correction Law § 610 (Matter of Rivera v
Smith, 63 NY2d 501, 510-511 [1984]), as noted earlier, defendant's actions in this instance - the seizing of the
photographs on the grounds that they may be gang material and the resulting disciplinary measures - are immune
from liability and consistent with legitimate correctional objectives.
Denial of an application for late claim relief is proper "where 'the excuse offered for the delay is inadequate and
the proposed claim is of questionable merit' " (Matter of Robinson v State of New York, 35 AD3d 948, 949-950
[2006], quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]; see also Matter of Brown v
State of New York, supra at 757 [2004]). Thus, the Court concludes that, upon balancing all of the factors set
forth in Court of Claims Act § 10 (6), late claim relief is not appropriate.
Accordingly, it is ORDERED that M-78310, movant's motion for permission to file a late claim, is denied.
September 30, 2010
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion dated April 30, 2010;
2. Claimant's Motion For Permission to File a Late Claim against the State and Proposed Claim sworn to on May
20, 2010, with exhibits;
3. Defendant's Affidavit in Support of Defendant's Motion to Dismiss by Assistant Attorney General Michael C.
Rizzo sworn to on June 8, 2010, with exhibit; and
4. Claimant's Reply filed on June 24, 2010, with the Office of the Chief Clerk, New York State Court of Claims.
1. The Notice of Intention prepared October 6, 2009, states that "[t]his is a claim for wrongful confinement for
religious beliefs" (Proposed Claim at Exhibit J). The Proposed Claim alleges a first cause of action based on a
violation of his "clear right to call witnesses and to present evidence in his disciplinary hearing" (Proposed
Claim, ķ 13) and a second cause of action based on "depriving [movant] his State constitutional (N.Y. State
Const. Art. 1 & 3) and procedural (N.Y. Corr. 610) right of exercising his religion" (id. at ķ 22).
2. The document reflecting the hearing disposition states that the 60 day keeplock start date was July 18, 2009,
the date movant's cell was inspected, and that the release date was scheduled for September 18, 2009 (Proposed
Claim at Exhibit B).
3. Although defendant's submission is labeled "Affidavit in Support of Defendant's Motion to Dismiss", the
affidavit is submitted in opposition to movant's motion to file a late claim (Exhibit A, ķ 2).
4. "A constitutional tort is any action for damages for violation of a constitutional right against a government or
individual defendants" (Brown v State of New York, 89 NY2d 172, 177 [1996]).
5. (see Arteaga at 218-219 ["Because of the problems of maintaining security and discipline within correctional
facilities, the discretion delegated to the employees and officers is necessarily comprehensive and calls for the
exercise of judgment under widely varying conditions. What, if any, disciplinary action to take in a given
situation is a matter requiring consideration of broad policies and objectives in the application of the governing
rules and regulations to the particular circumstances"]; see also Holloway v State of New York, supra at 766;
Ramirez v State of New York, supra at 679).
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